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Coronavirus (COVID-19): The role of healthcare employers

Mar 17, 2020

As we continue to be bombarded daily with the relentless 24/7 news cycle regarding coronavirus disease 2019 (COVID-19), the reality is that healthcare employees are currently the most likely to be exposed to the disease in the United States.

Accordingly, healthcare employers must start, or continue, to think about the various situations that may arise in the workplace and the multitude of laws that may apply. From the employee refusing to care for infected patients or broadcasting protected health information via social media, to the employee complaining that his employer isn’t doing enough to protect against infection risks, to the worker who vacations in China and then wants to return to work, healthcare employers face a delicate balancing act. How does an employer deliver the highest quality patient care while at the same time protecting employees from a potentially fatal disease? To do so requires an understanding of OSHA, the FMLA, the ADA, Title VII, and a host of other federal, state, and even local requirements.

Dealing with this crisis also requires common sense and practical solutions. For example, in an effort to minimize the potential risks associated with an employee’s refusal to treat a patient — which can range from termination of the employee and reporting to the appropriate licensing board, to EMTALA violations, and everywhere in between — some healthcare employers manage the risk of pandemic diseases by proactively seeking volunteers for a rapid response team who are provided extra training and compensation to be the employer’s first line of patient care for infected patients. Other healthcare providers institute new policies focused on employees who travel to infected countries in an effort to reduce the actual and perceived threat of exposure. Healthcare employers must think creatively about the practical aspects of these changes as well as the legal impact of them.

Like in most instances, communication is key. Healthcare employers should be communicating with employees regularly on protocols and procedures and reminding them about HIPAA and their other obligations under the law. Doing so now will, hopefully, reduce the number of misunderstandings and the need to take disciplinary action against employees in the future, thus allowing healthcare employers to reduce their risk and to focus on providing the highest level of patient care possible.

The labor and employment articles and FAQs on this website are intended to help employers think about the various issues that may arise during a pandemic crisis like COVID-19 and provide general advice and strategies for to them. The issues surrounding COVID-19 in particular continue to evolve and are fact-specific and the accompanying articles and FAQs are intended to start the discussion, not end it, regarding COVID-19 issues in the healthcare workplace. Employers should consult their legal counsel to discuss specific situations and strategies.

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