Covid-19 Legal Risks: Requiring masks at your practice

July 28, 2020

To avoid potential conflict, patients should be provided advance notice of your policy to avoid surprise and embarrassment.

While face masks are generally acknowledged as a vital safety device by the majority of the medical community, the CDC and OSHA, there is still some resistance to wearing them that can create legal and physical risks for medical practices. Here are some basics physicians should consider.

To avoid potential conflict, patients should be provided advance notice of your policy to avoid surprise and embarrassment, which often leads to resistance, business disruption and negative social media attention. Your mask policy should be clear, included in your intake documents and processes, posted inside and outside your practice, uniformly enforced and legally compliant.

Mask F.A.Q.’s for medical practice owners and managers

There are cases where cloth masks cannot reasonably be worn due to occupational safety issues including contamination from other harmful agents such as chemicals and other agents. Based on my research, those professions are typically industrial in nature and involve specialized processes, safety standards, and equipment that far exceed the burden and value of a cloth mask and is outside the scope of most medical practices.

Others argue a “medical condition” prevents them wearing a mask and therefore you can’t require it and must “accommodate” them and allow them to continue unmasked or face legal action. Based on both the screaming fits and physical altercations documented on social media, not all of these claims appear to be medically valid or made in good faith. While this column centers on asset protection in all its various forms and encourages you to be risk and lawsuit averse, don’t be pressured into exposing your staff and patients by threats of frivolous lawsuits if you are otherwise legally compliant. As always, carefully document everything, especially if patients refuse to comply.

Basically, only an individual with a disability who can show that wearing a mask would significantly interfere with their ability to breathe or some other necessary function could claim that an exemption from a mask requirement would constitute a reasonable accommodation,” Stephen Befort, a professor at the University of Minnesota Law School, told USA TODAY.

That said, a variety of false ridiculous and arguments are aggressively advanced as to why an individual does not have to wear a mask at your place of business, why you can’t require it, and what imaginary rule of law supports their arguments. I don’t suggest you argue these points, but I do think you and your staff should know the facts to effectively enforce your mask policy. The list below is a combination of actual questions I have received from doctors and business owners and the spurious arguments and false statements presented by those refusing to comply.

  • Yes, you can require masks to be worn on your property and/or place of business to protect other patients and your staff.
  • No, there is no First Amendment right to ignore mask rules on your property. Complying with government and industry safety standards neither compels nor prohibits free speech.
  • No, nether the 4th or 5th Amendment or HIPAA have any bearing on requiring a mask at your place of business. 
  • Yes, you can legally deny service to anyone who does not comply with your rules.
  • Yes, you may have to provide “reasonable accommodation” to those actually unable to comply, especially if they pose a “direct threat” to the health and safety of others.
  • No, there is no established universal legal standard that applies to all patients, it is a subjective, case-by-case analysis and cannot create an “undue burden” for staff and other patients.
  • No, there are no legally effective “mask exemption cards” they are fraudulent.
  • Yes, you can require employees to follow your workplace health and safety policies.
  • Yes, there may be situations where you need to provide accommodation for employees who actually can’t wear one for a valid medical reason.
  • No, the ADA does not grant blanket exemptions to face mask policies.
  • No, OSHA has not stated masks are ineffective against COVID19 or dangerous to wear while working.
  • Yes, cloth facemasks do provide “source control” and can be required.
  • No, cloth facemasks are not formally considered to be “PPE”.
  • Yes, employers can be held to have a duty to provide actual PPE to staff if work conditions (including an inability to distance) make lesser alternatives like cloth masks ineffective.
  • Yes, those using cloth face coverings should still implement social distancing and other abatement measures.

About the Author

Ike Devji, JD, has practiced law exclusively in the areas of asset protection, risk management and wealth preservation for the last 16 years. He helps protect a national client base with more than $5 billion in personal assets, including several thousand physicians. He is a contributing author to multiple books for physicians and a frequent medical conference speaker and CME presenter. Learn more at www.ProAssetProtection.com.