By John K. McGill, CPA, MBA, JD
Reopening your practice has unleashed a plethora of practice management and legal issues. If a staffer, patient, or their family member contracts COVID-19 from your office, can you be held legally liable? While much is still uncertain, here’s how to minimize your legal exposure.
Recent ADA survey statistics reveal that 97% of practices have reopened to provide non-emergency care, with busyness levels increasing to 80% or higher of pre-COVID-19 levels. That's an excellent recovery, especially given the multitude of new health and safety protocols required. Unfortunately, there’s still much unknown about how COVID-19 is transmitted and what your potential legal liability is if someone contracts it from your office. Already there have been hundreds of related lawsuits, and many more are expected.
Currently, there’s no federal liability shield protecting your practice as an employer from COVID-19 lawsuits, though business groups have been clamoring for it. There’s talk of including such a liability shield in proposed legislation providing another round of economic stimulus, but it’s unclear if this legislation will pass, or if it does, if these provisions will be included.
Some states have enacted state-level business protections from COVID-19 lawsuits. The protections in Arizona and Michigan are very limited, while North Carolina’s is broader, protecting those operating essential businesses. Utah provides the broadest, protecting both businesses and individuals from litigation when people are exposed to COVID-19 while on their property. Since the legal landscape is changing rapidly, you need to determine if your state provides any liability protection.
What protection does your workers compensation policy provide? Workers compensation policies provide immunity to you as an employer from an injury-type claim filed by an employee. Unfortunately, personal injury attorneys are pursuing novel theories to allow staffers to sue for COVID-19 damages. And your workers’ compensation policy provides no protection in a suit filed by a patient or his/her family.
Fortunately, a staffer, patient, or family member must prove that he or she contracted COVID-19 from your office, which would be difficult to demonstrate. After all, they may have been exposed outside the workplace and it can be difficult, if not impossible, to pinpoint precisely where the exposure occurred. While this is a major impediment, it doesn't eliminate the possibility of a costly lawsuit. While there’s no way to completely eliminate the legal risk, here are 3 steps you can take to minimize it.
1. Know the Rules
The Occupational Safety and Health Administration (OSHA) requires employers to provide a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” In the context of COVID-19, OSHA advises all employers to follow the guidelines established by the Centers for Disease Control and Prevention (CDC). So, it’s also imperative to stay abreast of these guidelines, along with any stricter rules issued by the ADA or your state dental board or society.
2. Implement the Guidelines
Understanding the guidelines isn’t enough. You must also make sure you actually implement them in your practice and that you’re actively monitoring them to assure you remain compliant.
Your practice may have signs posted outlining the guidelines, you may be checking temperatures, asking health questions daily, and practicing social distancing to the maximum extent possible. However, if you begin cutting corners as you grow busier, or have one or two staffers who are not compliant in wearing masks, you could potentially be held liable for negligence because your practice failed to enforce your own rules!
3. Audit Compliance Regularly
Since you’re busy producing in the operatory, how do you know your office's COVID-19 protection guidelines are being followed? Unfortunately, you don't know what you don’t know.
So, it's best to designate one staffer as your COVID-19 Compliance Director to document your efforts to ensure your office is adhering to the guidelines you put into place. The staffer should conduct a "walk through" audit daily to observe compliance and document the results in writing. Any failure should be reported to you in writing and corrected immediately. Having a COVID-19 compliance plan in place, that’s regularly monitored by a third party (staffer), will help prove your office has complied in good faith with the published guidelines.
The selected staffer should report the results at each staff meeting. Staff meetings also provide an opportune time for employee discussions regarding how effective the guidelines are, as well as any changes or additional steps that may be needed. Effective communication is critical to ensure your COVID-19 safety plan remains on track to protect you, your staff, and your practice from liability to the greatest extent possible.
John K. McGill, CPA, MBA, JD
John is a nationally prominent tax attorney and CPA who has specialized in dealing exclusively with the dental profession for more than 30 years. He is President of John K. McGill & Company, Inc., Editor of The McGill Advisory newsletter and shareholder in the law firm of McGill and Hassan, P.A. He graduated with honors from Erskine College and holds both a Master of Business Administration and law degree from the University of North Carolina at Chapel Hill. He formerly worked with the Office of Chief Counsel, the legal branch of the Internal Revenue Service, in Washington, DC. He is a member of the American Bar Association and the American Institute of Certified Public Accountants.
This article was reprinted with permission from The McGill Advisory, a monthly newsletter with online resources devoted to tax, financial planning, investments, and practice management matters exclusively for dentists and specialists, published by John K. McGill & Company, Inc. (a member of The McGill & Hill Group LLC). Visit www.mcgilladvisory.com or call 888.249.7537 for further information.