Legal Update: Avoiding Lawsuits in the COVID-19 Era

Medical Malpractice-Legal

By: Casey Duhart

Published: 6/11/2020

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Take steps to limit your legal liability during this unprecedented time.


Elective surgeries are back on the schedule and staff are returning under new circumstances and different expectations. As you begin to perform procedures amid the uncertainty the coronavirus pandemic has created, here are a few concrete steps you can take to make sure staff members are protected from exposure and treated fairly in the eyes of the law.

  • Safety violations. The U.S. Occupational Safety and Health Administration (OSHA) hasn't implemented COVID-19-specific guidelines, but you still must follow OSHA mandates to keep employees safe from recognized hazards that could cause serious harm or even death. Start with the simple things that might sound obvious, but, put together, add up to a great starting point to maintaining safe workspaces in the COVID-19 era. Post signs that remind staff, patients and visitors to follow 6-foot social distancing practices. Signage should also remind staff to wash their hands for 20 seconds periodically throughout the day.

Have plenty of hand sanitizer and disinfectant wipes available. Invest heavily in cleaning supplies. Clean the break room, door handles and light switches daily — and throughout the day, if possible. Establish enhanced cleaning protocols and ensure staff follow them.

You might find that some employees will refuse to report for work because of fears they have about being exposed to the coronavirus. Ask them for additional ideas that would make them feel safe — and implement them. If they still don't want to come to work, implement your absentee protocols: Give a written warning and a final warning before termination.

Whenever possible, continue holding team or leadership meetings in the virtual realm, even after your facility reopens. Online meetings worked very well in many industries, and continuing them with employees in the same building should be a common practice under the current circumstances. Workstations might have to be reconfigured, or new barriers might need to be installed — at the patient registration area, for example — in order to abide by social distancing protocols and limit exposure risks. If possible, consider staggering shifts to limit the number of employees in the facility at the same time. Formalize social distancing practices as policy, communicate to the staff why the policies are important and explain how they're going to be implemented.

HELP YOURSELF Document the steps you take to give staff every opportunity to practice proper hand hygiene.

Also consider adopting testing and other safety protocols for staff members who return from vacations. Finally, assess the situation in your local area. If you have large numbers of new coronavirus cases, your staff would need to adhere to local social distancing regulations that might be more stringent than your state's reopening guidelines.

  • Leave requests. Healthcare facilities are exempt from the Families First Coronavirus Response Act (FFCRA), which allows employers to provide up to 12 weeks of paid leave for workers affected by the pandemic. You must therefore use your own discretion to provide paid leave for employees who are sick with the coronavirus and are under a state quarantine order, who have kids home from school that need to be watched, or who must take care of a loved one who has COVID-19. I strongly believe these situations are going to be ripe for lawsuits. Document your reasons for granting, or not granting, leave to employees who request it. Make sure to pay employees who are granted leave every dollar to which they're entitled. The last thing you want to deal with is a wage-and-hour violation — when you're trying to do the right thing by your employees — because you've miscalculated the amount of paid leave they should receive.

If you have immunocompromised employees, try to find accommodations for them to temporarily work at home to avoid Americans with Disabilities Act lawsuits.

  • Discriminatory allegations. When determining whether to allow someone to take paid time off, it's critical to apply the same standards for approving or denying leave requests fairly for all employees. You'll expose your facility to potential age or race discrimination lawsuits if a white male gets approved for leave and a minority woman does not, for no valid and documented reason.

Given that the coronavirus started in China, the possibility exists that employees or patients of Asian descent could face discriminatory actions or comments. If such an allegation presents itself, hold true and fast to your anti-discriminatory policies. Investigate the allegations and, if appropriate, discipline accordingly.

Creating a record

Doing business during a pandemic demands keeping detailed written records. If anything, this is a time to over-document. We don't expect lawsuits from incidents that happened during this COVID-19 emergency to be filed in October and November. They'll likely be filed next year, so make a note of the decisions you make related to COVID-19 precautions or policies. While defending your actions, if something isn't in writing, it didn't happen. OSM

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