Recently, some medical practices have reported an increasing number of patients who are resisting or refusing to comply with the practice’s COVID-19 facemask policies. As a result, many medical practices are reevaluating their COVID-19 facemask policies and how to enforce them.
What is the current CDC guidance on facemasks for medical practices?
While the CDC continues to generally recommend the implementation of COVID-19 safety measures (e.g., facemasks, physical distancing and COVID-19 screening measures), the CDC recommends medical practices and other healthcare settings review community transmission rates to determine which safety measures to implement.
With respect to facemasks, the CDC advises that it is generally safest to implement universal use of source control (i.e., facemasks) for everyone in a healthcare setting, including healthcare personnel, patients and visitors. Notwithstanding, certain allowances can be considered for individuals who are up to date with all recommended COVID-19 vaccine doses in healthcare facilities located in counties with low to moderate community transmission. Such allowances may include permitting healthcare personnel who are up to date with all recommended COVID-19 vaccine doses to choose not to wear facemasks when they are in well-defined areas that are restricted from patient access, or to allow patients or visitors who are up to date with all recommended COVID-19 vaccine doses and are not suspected of having COVID-19 (based on symptom and exposure history) to choose not to wear facemasks when in single-person rooms or other designated areas when others are not present.
Currently, the only Michigan county with low or moderate community transmission rates is Presque Isle County. All other Michigan counties have substantial or high COVID-19 community transmission rates. Current CDC COVID-19 guidance for medical practices is available here. Medical practices should continue to monitor for updates to the CDC’s guidance on facemasks and other COVID-19 safety measures.
Should medical practices eliminate facemask requirements for patients, visitors and staff?
No. Even if a medical practice is located in a county with low or moderate COVID-19 community transmission rates, consideration should be given to COVID-19 and other workplace safety standards enforced by OSHA. While OSHA has withdrawn its non-record keeping portions of the COVID-19 healthcare emergency temporary standard (ETS), OSHA continues to strongly encourage all healthcare employers to continue to implement the ETS’s requirements, including requiring facemasks, in order to protect healthcare workers from COVID-19. In addition, while OSHA is currently developing a final COVID-19 standard for the healthcare industry, OSHA retains the ability to enforce the General Duty Clause, which requires employers to keep a workplace free from recognized hazards known to cause death or serious injury.
Why are facemasks required at some medical practices and optional at other medical practices?
At this time, there is no state or federal law, regulation or order that expressly requires the use of facemasks in medical practices. For this reason, while some medical practices have continued to require facemasks as part of their COVID-19 safety measures, other medical practices have implemented policies which require facemasks only in certain circumstances (e.g., if a patient, visitor or staff member is unvaccinated) or which make facemasks optional regardless of vaccination status or community transmission rates.
Notwithstanding, to mitigate and prevent the spread of COVID-19, guidance from the CDC and OSHA continue to recommend and encourage facemasks in healthcare facilities and other healthcare settings. In addition, the Michigan Department of Health and Human Services (MDHHS) continues to recommend wearing facemasks during surge and post-surge recovery phases of the COVID-19 cycle, particularly in high-risk congregate settings, such as healthcare facilities.
While medical practices should implement COVID-19 policies which best meets the needs of their practice, MSMS continues to recommend medical practices implement policies which provide the greatest amount of safety for patients, physicians and other healthcare personnel, as well as the least amount of risk for medical practices consistent with applicable laws, regulations and available guidance.
What if a patient or visitor refuses to wear a facemask?
If a medical practice requires facemasks as part of its COVID-19 safety measures and a patient or visitor objects to or refuses to wear a facemask when required, physicians should ensure its policies include a protocol for explaining the medical practice’s policies, including the CDC’s guidelines for health professionals, which may be different from guidelines for individuals, and that a patient must comply with the practice’s policies while inside the facility. Physicians should avoid using judgmental language against individuals with facemask concerns, which could negatively impact the patient’s trust and the overall physician-patient relationship. In addition, sharing facts about facemasks, as opposed to personal opinions, may be more effective.
Medical practices should also ensure that its policies include a protocol for addressing patients who become hostile or argumentative regarding the practice’s COVID-19 policies. Such protocols may include placing the patient in a room or waiting area away from patients, or if necessary and appropriate, the patient’s appointment may be rescheduled to a telehealth visit. Medical practices should avoid terminating a patient or referring the patient to another physician for treatment due to the patient’s noncompliance with the medical practices’ policies unless the physician-patient relationship has deteriorated, or other exceptional circumstances exist.
What if a patient or visitor requests a medical exemption from any facemask policies?
Medical practices are generally considered places of public accommodation and must comply with the federal Americans with Disabilities Act as well as Michigan’s Persons with Disabilities Civil Rights Act, when enforcing the practice’s own COVID-19 policies. Physicians need to have a process to address requests by patients and visitors for exemptions from the practice’s facemask requirement or similar policies based on medical grounds and to assess whether or not reasonable accommodations are possible. Physicians should not assume that an unmasked patient or visitor cannot medically tolerate a facemask or comply with other COVID-19 policies, but physicians are permitted to accept the patient or visitor’s verbal representation to that effect. Best practices advise to not request medical documentation from the patient or visitor to determine whether the patient or visitor has a disability warranting a reasonable accommodation.
Are medical practices still immune from liability for COVID-19 claims?
Yes. Michigan law still provides immunity to persons, including physicians and medical practices, from tort civil actions arising from exposure or potential exposure to COVID-19 or conduct intended to reduce the transmission of COVID-19. However, in order to be eligible for such immunity, persons must have acted in accordance with all federal, state and local statutes, rules, regulations, executive orders, and agency orders related to COVID-19 that had not been denied legal effect at the time of the conduct or risk that allegedly caused harm. Such immunity applies retroactively to any claim or cause of action that accrues after March 1, 2020.