COVID-19 FAQ for Healthcare Employers

With every day that passes, the number of confirmed COVID-19 cases across the globe continues to grow. Along with it, recommendations, declarations and briefings are provided daily via the federal, state and local governments. Staying up to date on all things coronavirus is especially nerve-wracking as there is a plethora of information being fed to regularly from hundreds of different sources and outlets. Being a healthcare employer during this unprecedented time is especially daunting, particularly if you’re a small practice owner and don’t have the oversight of a large healthcare facility. Exactly what do you need to do to ensure the safety of your business and your employees? Here are 5 FAQs you need to know about COVID-19. 

If my employees in the healthcare setting contract COVID-19 at work, can they make a worker’s compensation claim?

This will depend on which state your practice is located in as some states have rules that prohibit individuals from making a worker’s compensation claim for a viral infection whereas others do not. In the past, health care workers have been approved for worker’s comp after getting influenza on the job, so it is entirely possible that your employees may be able to make a credible argument that they were infected with COVID-19 while on the job, particularly if the employee was a on the frontlines of treating a patient with the virus. 

If an employee must quarantine, do I have to pay during this time period? Can I make them use PTO?

Currently, there is not a Federal requirement for employers to provide paid leave to employees who must quarantine. However, this is rapidly evolving as the House of Representatives is working quickly to provide legislation that could provide up to ten weeks of paid leave for individuals affected by COVID-19; the proposed legislation would include individuals who are either in quarantine, are caring for family members with COVID-19, and for those who have children whose schools or day-care centers have closed. This legislation, however, may not cover healthcare providers and emergency responders as the US may find itself facing a shortage of providers during these uncertain times. 

While the paid leave aspect isn’t yet for certain, according to OSHA, employees who are either infected with coronavirus themselves or are caring for an infected family member may be entitled to leave under the FMLA since COVID-19 falls into the category of a ‘serious health condition’ as defined by the FMLA. If your employees are eligible for FMLA, you must have a sick leave policy that complies with the FMLA. In addition, OSHA states that Federal equal employment opportunity laws do not prohibit employers from changing a paid sick leave policy so long as it is done in a non-discriminatory manner, however, before making any changes to your policies concerning paid leave, it’s important that you consult your state and local laws and any applicable collective bargaining agreements and employee contracts before making any new paid leave policies as a result of the coronavirus. 

Are there any special provisions with President Trump’s new declaration of a state of emergency that allow for rapid credentialing of providers so I can increase my workforce more rapidly?

If your practice is in one of the 48 (and counting) states that has declared a state of emergency, there is a chance that one of the actions taken under the emergency declaration includes waiving licensing and credential requirements for additional health care staff who are licensed from from other states in order to meet increase your workforce more rapidly, so you will need to check with your state for the specifics. 

Furthermore, following President Trump’s declaration of a state of emergency, the Centers for Medicaid and Medicare Services (CMS) issued a COVID-19 Emergency Declaration Health Care Providers Fact Sheet that sets forth certain regulatory flexibilities for providers. The declaration permits providers located out of state or territory to provide care to another state’s Medicaid enrollees impacted by the emergency; temporarily suspends certain provider enrollment and revalidation requirements and waives requirements that physicians and other healthcare professionals be licensed in the state in which they are providing services, so long as they have an equivalent licensing in another state. The declaration also temporarily suspends requirements for certain pre-admission and annual screenings for nursing home residents. Please note that you must submit a Section 1135 waiver request directly to the CMS Acting Director in order to request these permissions. 

Our facility doesn’t have the supplies we need that are recommended for employees’ COVID-19 protection. What is our legal exposure related to this and how do we mitigate risk?

While there currently are not specific OSHA standards covering COVID-19 exposure, some OSHA requirements may still apply to prevent occupational exposure. Specifically, employers are obligated by OSHA to provide personal protective equipment, or PPE, to employees and ensure its uses. 

If you find yourself in a situation where you do not have the supplies you need for your employees’ protection and your facility’s regular medical distributors are unable to fulfill orders for critical medical supplies such as PPE, according to the Bureau of Primary Health Care, your state’s department of health is your best option for assistance in obtaining any supplies you need for your employees. As such, you’ll first need to contact your local and/or state public health department for immediate assistance. If the state is not able to provide you with PPE for your employees, the state health officials may request federal assistance from the Department of Health and Human Services via the state’s governor or representative. If and when the assistance from HHS is approved, the HHS Assistant Secretary for Preparedness and Response will direct deployment of supplies from the Strategic National Stockpile which will then be distributed to state public health officials. The state is then responsible for distributing the supplies to the areas in need. 

Currently it is unclear what your legal exposure may be if you’re not able to obtain PPE through the Strategic National Stockpile. OSHA standard makes it clear that you cannot require your employees to provide their own PPE; however, if an employee wishes to do so, you are responsible for ensuring that it is adequate to protect the individual healthcare provider. Furthermore, if a healthcare employee is unwilling to wear PPE, you are responsible for removing them from caring for any patients with suspected COVID-19. 

Am I allowed to mandate that employees do not travel or at least to areas of risk during this time to make sure they are available for patient care and/or not spreading COVID-19 to the workplace?

First and foremost, if you do not already have one, it is imperative that you develop an infection disease preparedness and response plan for your facility in order to help guide your protective actions against COVID-19 and other pandemics or epidemics. Along with this plan, you’ll need to also stay up-to-date on the guidance from the federal, state, local, tribal and/or territorial health agencies and incorporate these recommendations and resources into your plan. 

According to OSHA, this plan can include administrative controls such as changes in your policies and procedures, which would include mandating that your employees do not travel to locations with ongoing COVID-19 outbreaks. Be sure to actively stay up to date on the CDC’s travel warning levels and revise your mandates accordingly. 

If you choose not to mandate travel, according to the CDC, you should still advise employees before traveling to take certain steps such as checking the travel levels and checking themselves for symptoms of acute respiratory illness before starting travel. 

Share your plan with employees and explain what human resources policies, workplace and leave flexibilities, and pay and benefits will be available to them. Be understanding that this is a stressful time for everyone. While healthcare workers do understand the importance of their roles during this critical time, they’re still human and have very real concerns about their own safety and health, as well as that of their families’. When employees are informed and feel safe at work, they’re more likely to be ready to step up to the plate and help fight this pandemic.