Managing the Healthcare Workplace During the COVID-19 Outbreak

Based on the OSHA Guidance and recommendations from the World Health Organization (WHO) and the U.S. Centers for Disease Control and Prevention (CDC), U.S. healthcare workplaces should take some basic steps now:

• Stay current: Healthcare employers and their counsel should closely monitor the World Health Organization and U.S. Centers for Disease Control and Prevention websites, as well as updates from state and local health authorities. They should also follow public health emergency planning and response activities at the state and local level. As of March 27, 2020, all 50 states and the District of Columbia had declared a “state of emergency,” a designation which gives expanded powers to state agencies to help combat the disease. For example, Florida and California are allowing persons holding healthcare licenses from other states to provide healthcare services in these two states, thus allowing healthcare employers to utilize these professionals during the pandemic.³   
• Develop an emergency plan: Some states require certain healthcare facility license holders to have an emergency plan.⁴   Regardless of whether the state requires it, OSHA recommends all worksites have emergency plans in place. Healthcare employers should have a staffing plan in place in case of a COVID-19 outbreak in the community. Providers should also have a current facility emergency contact list with phone numbers and emails for all personnel, as well as  local and state health department emergency contacts. Because of the risk to staff and the higher risk of an adverse outcome, residential facilities in particular will need to assess their needs for this fast-spreading disease. Consider where, when and how workers might be exposed and risk factors of individual workers who are 65 and older or suffer from a chronic health condition, are immune-compromised, undergoing cancer treatment or are severely obese.⁵  Plan for increased absenteeism, the need for staggered workshifts, social distancing, and delivering services remotely.  Anticipate disruptions to supply chains. Consider contingencies for worst case scenarios such as if all staff become infected, all patients become infected, and if the facility has to close.  Many healthcare facilities have staff that have been exposed to the virus and are being asked to self-quarantine.  The CDC interim recommendations are that if staffing options are exhausted, asymptomatic exposed healthcare staff can return to work with full PPE if available.⁶   However, the employer needs to make sure that applicable state regulatory authorities agree that using such staff is allowed.
• Utilize government emergency exceptions: Many states are declaring public health emergencies allowing certain restrictions on healthcare providers to be waived. For example, under Florida’s public health emergency, pharmacies can dispense a 30-day emergency refill⁷ and insurers must waive time restrictions for prescription refills.
• Communicate with staff and patients: Keep staff current on information about CDC and state COVID-19 guidance as it becomes known. Look for opportunities to use telemedicine or other means to allow those patients who can be cared for at home to avoid unnecessary visits to the facility. If patients must be seen in the facility, be sure to separate patients with respiratory symptoms in the waiting area from other patients. Provide training on the hygiene measures recommended by the CDC and make sure the hygiene is enforced.
• Protect the workforce: Encourage or require sick employees to stay home.⁸ Consider requiring that such employees provide a physician’s note to allow their safe return to the workplace if this can be done without risk of further infection, or obtain a negative test for the virus. Screen patients and visitors for symptoms of acute respiratory illness. Some states are severely limiting guests to residential facilities.⁹  Be sure patients with symptoms of COVID-19 are given a facemask and provide PPE to those personnel who will be in close contact with them. Special attention should be given to employees that are in any of the CDC identified risk groups (such as  over 65 years old or with underlying health conditions).

Additional Recommendations when Dealing with Exposure from Patients

Healthcare personnel caring for patients with confirmed or possible COVID-19 should follow the CDC’s additional recommendations¹⁰ for infection prevention and control.

The recommendations include assessing and triaging patients with COVID-19 symptoms or risk factors, including placing a facemask on the patient and isolating the patient in an airborne infection isolation room, if available; using standard precautions and eye protection when caring for patients with confirmed or possible COVID-19; and practicing good hygiene before and after all contact with patients or potential infectious material and before and after donning PPE. If a healthcare provider’s employee has unprotected exposure to a patient with COVID-19, the employee should immediately contact his/her supervisor.

The CDC has issued detailed guidance¹¹ for managing personnel with potential exposure to patients with COVID-19.  The recommendations are based on the risk to which the employee is or has been exposed. Employees who had prolonged close contact with infected patients who were not wearing a face mask are considered high risk, while those who had such contact with patients who were wearing a face mask are considered by CDC to be medium risk. Employees who had only brief interactions with patients with COVID-19 or prolonged close contact with patients who were wearing a facemask while the employee was also wearing a facemask are considered low risk. Employees wearing eye protection in addition to a facemask are considered to have even lower risk of exposure.

The CDC recommends that employees at high or medium risk who are asymptomatic be excluded from work for 14 days after the last exposure. If they develop a fever in excess of 100 degrees Fahrenheit or respiratory symptoms consistent with COVID-19, they should immediately self-isolate and notify their local or state public health authority and healthcare facility to coordinate referral to a healthcare provider for further evaluation.

The CDC recommends that those in the low risk category perform self-monitoring with delegated supervision until 14 days after the last potential exposure. The CDC says exposed asymptomatic healthcare employees in this category need not be restricted from work if attempts to find other workers are exhausted and the employees use PPE if available.  Employers should confirm with state regulators that this is allowed.

Employers should adhere to recommended infection control practices (including PPE) and perform self-monitoring with delegated supervision. The CDC says that this same guidance could also apply to healthcare employees who were exposed to patients awaiting COVID-19 testing or test results.¹²

If healthcare employees have community- or travel-associated exposure they should inform their facility and undergo monitoring in accordance with the CDC’s separate guidance for those kinds of exposures.¹³

The CDC notes that all healthcare personnel are at risk for exposure to COVID-19, whether in the workplace or the community. Because of concerns over diversion of critical healthcare resources from infection prevention and control, the CDC encourages facilities to ask personnel to report recognized exposures, regularly monitor themselves for fever, and not report to work when ill. One simple method: have healthcare personnel report the absence of fever and symptoms prior to starting work each day.¹⁴

If a healthcare employee develops even mild symptoms of COVID-19, he/she should cease patient care activities, wear a mask and notify his/her supervisor or occupational health services prior to leaving work.

Reducing Liability

The CDC guidance is the most comprehensive and authoritative guide to employers and healthcare providers addressing COVID-19 and may become the standard of care for healthcare providers dealing with the COVID-19 pandemic.  If a healthcare employee infects a patient resulting in harm, there will likely be allegations raised of, at a minimum, failure to properly screen the staff, failure to train the staff, and/or failure to provide adequate PPE.  A good faith compliance with the CDC and state guidance should help employers mount a solid defense to any such allegations.

Conclusion

The COVID-19 pandemic has created a variety of new health risk issues for healthcare employers to consider.  Preventing the spread of the disease requires social distancing and treatment considerations such as increased use of telehealth, PPE and increased hygiene.  Additionally, as the CDC and the state health care regulators learn about the virus, the recommendations for addressing it may change and what is recommended today may not be what’s recommended tomorrow.  Constant vigilance is needed to protect the patients, employees and healthcare provider employers. 

1. 29 C.F.R. § 1910.1030 PPE.
2. 29 C.F.R. § 1910 Subpart I.
3. Florida Emergency Order 20-52 and California Proclamation of Emergency, Mar. 4, 2020.
4. Section 408.821, F.S.
5. CDC website: People who are at higher risk for severe illness, Mar. 26, 2020.
6. Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19) (Mar. 7, 2020).  “Facilities could consider allowing asymptomatic [healthcare personnel] (HCP) who have had an exposure to a COVID-19 patient to continue to work after options to improve staffing have been exhausted and in consultation with their occupational health program.  These HCP should still report temperature and absence of symptoms each day prior to starting work.  Facilities could have exposed HCP wear a facemask while at work for the 14 days after the exposure event if there is a sufficient supply of facemasks. If HCP develop even mild symptoms consistent with COVID-19, they must cease patient care activities, don a facemask (if not already wearing), and notify their supervisor or occupational health services prior to leaving work."
7. Florida Emergency Order 20-52/.
8. Guidance on Preparing Workplaces for COVID-19. OSHA 3990-03 2020.
9. Florida Department of Emergency Management Emergency Order 20-002 and 20-006.
10. Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings.
11. Interim Infection Prevention and Control Recommendations for Patients with Suspected or Confirmed Coronavirus Disease 2019 (COVID-19) in Healthcare Settings.
12. Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19), Mar. 7, 2020.
13. Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19), Mar. 7, 2020.
14. Interim U.S. Guidance for Risk Assessment and Public Health Management of Healthcare Personnel with Potential Exposure in a Healthcare Setting to Patients with Coronavirus Disease (COVID-19). Mar. 7, 2020.

About the Authors

Karen Buesing, based in Tampa and partner in Akerman LLP’s Labor and Employment Practice Group, is one of only about 200 lawyers in Florida certified by The Florida Bar as a specialist in Labor and Employment law. Ms. Buesing has been counseling and representing management in employment law matters since 1982, including litigation before local, state, and federal agencies, state and federal courts and arbitration panels.  Her experience includes representing physician practices, pharmacies, hospitals, home health agencies and medical equipment manufacturers, as well as other businesses. She is a Fellow of the prestigious College of Labor and Employment Lawyers. She may be reached at [email protected].

Martin Dix, based in Tallahassee and partner in Akerman LLP’s Healthcare Practice, is Board Certified by The Florida Bar in Health Law and focuses his practice primarily on pharmacy and drug distribution law. His clients encompass nearly all aspects of the legal drug delivery system, including pharmacies, pharmacists, pharmacy benefit managers, drug wholesale distributors, and drug and dietary supplement manufacturers. Mr. Dix also represents a variety of other healthcare providers and entities on healthcare regulatory issues, such as hospitals, assisted living facilities, healthcare clinics, clinical laboratories, mental health centers, and medical marijuana dispensaries.  Mr. Dix serves on the Board of Directors of the American Society for Pharmacy Law.  He may be reached at [email protected].