Last month we looked at the laws about mask mandates.

This month we will look at some questions about how a mandate that you set up in your own office can play out as a practical matter.

Before we get to the questions, let’s just review the basics:

  • A general rule for a business is that it can mandate conduct on its premises. The stores that have a sign in their front window that says “No mask, no service” are acting within the same scope as those that say “No shirt, no service”.
  • As a business owner who is receiving invitees and visitors on your premises for your financial benefit, and as an employer, you have both common law and statutory duties to keep your premises as hazard-free as possible.
  • As a medical practice you go beyond this because your office actually attracts people seeking diagnosis and care because they may be infected while also attracting those who are vulnerable to being infected, and you are a fiduciary for all of them.
  • We are discussing mask mandates here because they are currently a volatile issue, but these principles apply to all protective measures that you may institute in your office, such as social distancing, hand washing, limiting who can accompany a patient or how many people can be in the waiting room, and requiring patients to put their belongings in a closed bag.

Now, let’s move on to questions about the ADA, the issue of abandonment, and dealing with employees.

 

  1. I have a patient who had a lobectomy two years ago for a lung abscess. She recovered well. She mentioned feeling short of breath when required to do more strenuous activities although she said that she could deal with it if she rested. She never claimed to be disabled. She has a new complaint of palpitations and has an appointment to see me in the office because I do not think that I can do an adequate cardiac assessment virtually. When she made the appointment she told my secretary that it is too hard to breathe with a mask on and that the ADA makes her exempt from our rule on having to mask in the office. We are very careful in our office practices, with all staff masked and the medical staff in PPE and the rooms being cleaned every time a patient is seen and the entire office being sprayed with antiseptic aerosol at the end of the day.  Patients doing their part and masking is important too. Is she right that I cannot require her to do so?

Based on these facts, she probably is.

The role of the ADA is one of the two significant limitations that a medical practice may have to deal with in enforcing its own mask mandate.

The ADA defines a disability as an impairment that significantly limits one or more major life activities. This is a fundamentally functional definition and so the person does not have to have been previously self-declared or officially designated to be disabled for this to apply.

The disability also does not have to apply generally.  Someone who can walk up a few steps can still be disabled as to a steep flight.  In this case, she can breathe adequately when not masked despite her prior lung surgery but feels short of breath when the mask is on.

The mask is not the disability – the effect of the prior surgery is, but only in the additional setting of the mask. In other words, the daily life activity of breathing is, when the mask is also present, impaired by her pre-existing limitations due to the lung surgery.

The ADA therefore presumptively applies in this scenario so that she cannot be denied access to your office, which is a place of “public accommodation”, or to the healthcare that she needs, because she now cannot comply with the new requirement of masking.

This has to be distinguished from the misconception that being disabled is an automatic masking exemption.  For example, a blind patient or an amputee would need accommodations for their specific disabilities but would be expected to comply with masking.  The ADA would only address conditions that masking impinges on.

Is it possible that this is all psychological, more about anxiety than actual dyspnea?  Sure.  Is that a fight that you now want to have, insisting that she get a pulmonary evaluation to prove her wrong, particularly since she made complaints of shortness of breath in stress situations before?  No.

On the other hand, as mentioned above, you have duties to other patients, to those who visit your office for non-medical reasons, and to your employees.  The extent to which you would have to accommodate her would therefore follow some analysis steps.

To start with, the ADA does not require that someone whose disability creates an irreducible significant danger to others be allowed in a public space.  However, unless she has had recent exposure to COVID-19 or is symptomatic this would not apply to her.

The ADA also does not require that a business be significantly disrupted to permit an accommodation but you are already masking and wearing PPE and cleaning several times a day as well as spraying the air and you would not be doing more than those extensive and costly steps just because this patient was present without a mask.

That then brings you to what “reasonable accommodation” you could make that would counter the risk that she may present.

Basically, that would come down to preventing contact, including scheduling her when other patients are not expected and/or rooming her when she arrives rather than have her stay in the waiting area. However, the ADA prevents stigmatizing the person with the disability so these would just have to be steps that are taken naturally rather than being made a point of as being due to her maskless state. Rapid testing her before she is allowed entry would be a step too far.

Of course, if she reported a worrisome history or arrived with frank symptoms you could exclude her and  the ADA would not impact on it because you would exclude anyone in such a situation even if they were masked, making it unrelated to her disability.

None of this should be confused with anti-maskers flashing a “medical exemption card” that they printed off the internet and insisting that they have some unspecified medical condition that prevents masking and that you are not allowed to ask about and that making them mask violates the ADA. That should just be ignored and the troublesome patient can be removed from the practice.

 

  1. I have a diabetic patient who is well-controlled but is generally cantankerous and veers to non-compliance unless I keep a close eye on him. I therefore like to get him into the office every three months. The last time that he was in he did wear a mask as we require but when he called for his next appointment he said that he had had enough of being told what to do and would not wear a mask and that we had to respect that choice. I told the front desk to not schedule him but the office manager said that would be abandonment and she convinced me to let him come in. The MA and I went full-on hazmat with PPE and, of course, the room was scrubbed down after he left, but the more that I think about it the more I think that the office manager was wrong and that we could have refused to see him or even terminated him.
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Abandonment is the second major issue that an office with a mask mandate must keep in mind.

Abandonment occurs when a medical practitioner or facility terminates a patient who is undergoing an active phase of needed care without giving the patient enough notice to find care elsewhere. It does not apply, however, to routine care.

A diabetic patient who was just discharged from the hospital after suffering an episode of DKA could therefore not be turned away without notice and would have to be dealt with by alternative methods, such as distancing from other patients, if they refused to wear a mask.  This patient, however, was being seen at quarterly intervals not based on changes in his condition or as part of following up a recent procedure or new treatment but solely to keep tabs on him, and he would have time to seek another doctor’s care.

Of course, the threat of being cut loose from the practice could itself have gotten his compliance but he could have been denied the appointment or even terminated from the practice if he remained intransigent on masking.

Before we leave this topic there is one other issue as regards abandonment that is particularly resonant during the pandemic: constructive abandonment.  This occurs when a termination has been done facially properly as far as notice and an offer of emergency coverage but the doctor knows that the patient really has no other option.  Typically this is because no one else locally takes the patient’s coverage or the patient needs care that is highly specialized.  COVID-19 has worsened this situation, though, because practices are seeing their already-established patients on only a limited basis and are not taking on new patients, and ER’s and clinics that could be fallbacks for a patient who is between doctors  are now overwhelmed with priority cases.  These issues should not apply in this case because this patient really does not have to be seen at a specific interval based on his clinical status and will have time to get alternative care, but as a general matter you should bear these limitations in mind.

 

  1. Everyone in the office must wear a mask while they are here but I am concerned about what they do outside. A lot of the staff are young and they may be going out in large unmasked groups or otherwise acting stupidly when they are not here. I would like to add a policy that anyone found to be doing this will be terminated. Can I do that?

There is no question that you can regulate what your staff members do as far as masking on your premises.  As your agents in patient care they are integrated into your fiduciary duties that include patient safety,  and your OSHA duties to provide a safe workplace for other employees also allows you to restrict them from dangerous conduct that could impinge on their colleagues.  You can apply the masking requirement universally because even workers not involved in direct patient contact are in contact with shared air in the office.

If an employee is at-will, you can fire them immediately for non-compliance with a masking requirement. If they have contractual notice protections then you can inform them (in writing as your evidence if they make a wrongful termination claim) that their continued employment requires adherence to the office’s mask rule, and then terminate them immediately if they do not comply since a “strikes” policy or a“30 days to cure” clause cannot serve to allow an ongoing danger.

Here, though, you want to reach outside the office to control an employee’s conduct, something that is quite limited to an employer.

The first question is whether the conduct is lawful because the general rule, codified into law in some states, is that if the outside activity is lawful then the employer may not restrict it.

However, even if you are in an area that does not limit crowd sizes or require masking in social settings, so that maskless partying is not an unlawful activity, there is also the issue of whether the conduct actually affects their work because that may still allow you to address it.

Here, though, your own controls in your office would likely block you. You presumably have protocols in place to detect signs of infection before it enters and to block spread if it enters while sub-clinical. A foolish partygoer would be prevented from endangering the office just as much as someone accidentally infected while shopping for groceries.

You also monitor employee conduct in the office so even if they lack good judgment once they leave you can control what they do on your premises and so can prevent risk.

This leaves only one basis for disciplining them: that their poor conduct on their own time will be imputed to your practice and call it into disrepute in the eyes of the public.

There are contractual provisions of this type that you can amend in and you could also add this to the employee handbook.

However, this would still be limited to situations in which the person is recognizably part of your staff.  Social media postings where the employee talks about where they work while posing without a mask or where someone else flags their presence in a posted photo and comments about where they work would be examples.

The recent case in which an oncology nurse posted a video of herself mugging and smirking on TikTok as she mocked what her colleagues would say if they knew how reckless she was outside the hospital demonstrates the wide scope of an employee’s power when there is such a situation.

When the hospital started to be inundated with demands to know how it could be exposing vulnerable patients to her – other words, directly imputing her irresponsible conduct and its potential effects on patients to her employer – the nurse was immediately placed on administrative leave that kept her away from patients, not just satisfying the fiduciary duty of the hospital to its at-increased-risk cancer patients but correcting the business damage that she was causing by making the hospital look slipshod.

The specific conduct is also relevant because it went directly to the function of the business.  This is not a situation such as an employee being involved in an affair and the employer being concerned that some people might consider the business to be fostering immorality.  This would be analogous to a stockbroker sitting at her desk in the brokerage office and boasting that she routinely engages in insider trading with her own portfolio.

This nurse will likely be terminated, but in the interim of that process taking its set steps the hospital can act to preserve its good name.

Of course, someone bent on acting inappropriately could then just be deceptive about it. Setting the regulation, including in your social media policy as well, would be prudent but it should be coupled on the positive side to a serious talk with all staff members about their responsibility to actually set a good example for masking when they are out in the community.