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NY Document Says Coronavirus-Infected Health Care Personnel Can Be Asked to Return to Work

In a dizzying series of protocol documents, both the New York State Department of Health (DOH) and its Office for People with Developmental Disabilities (OPWDD) have quietly issued formal guidances which allow health care personnel and other essential employees who have been exposed to or even infected with the novel coronavirus (COVID-19) to return to work — in person — even if they have some symptoms. However, a strict series of steps must be met for that to happen.

Several of the protocol documents have been updated many times, including this past Saturday and again on Tuesday. In just three days, the documents shifted. On Saturday, the documents authorized hospitals to allow infected employees to go back to work. By Tuesday, one document actually allowed hospitals to “request[]” infected employees to “continue to work.” Plus, as one attorney points out, it’s unclear from the documents if New Yorkers will ever know whether a particular professional interacting with them or a loved one either has the coronavirus or has been exposed to it.

READ all of the documents in the embed below

Let’s start with Saturday’s broader DOH document, which contains guidance for virtually the entire state’s healthcare system, including hospitals, nursing homes, adult care facilities, EMS workers, home care workers, outpatient clinics, and private practice doctors. It says health care personnel (HCP) exposed to a confirmed coronavirus case or who have traveled abroad recently can be allowed to work if a series of seven criteria — all of which must be met — are followed. One of the criteria is that the HCP cannot have symptoms. Another is that the employee “should” (not “must,” not “shall”) wear a face mask and “should” be assigned to work with “lower risk” patients. Then, this chilling caution appeared: “As this pandemic grows, all staff will need to be assigned to treat all patients regardless of risk level.” The list also says that an exposed employee who develops symptoms “should immediately stop work and isolate at home.”

The document goes on to give a list of six criteria — again, all of which must be met — for when health care personnel (HCP) can be allowed to return to work if they have actually contracted a “confirmed or suspected” case of COVID-19. That list required the employee to be free of a fever for 72 hours without medication before returning to work, but it generally allowed infected employees to work if their other symptoms were “improving.”

All of this, however, went out the window after just three days. The updated protocol from Tuesday contains the same list of seven criteria whereby a health care employee exposed to a confirmed case of COVID-19 can be allowed to work, but it adds that the list also applies to an employee exposed to a suspected case of COVID-19 as well. There are a few minor changes to the rest of the steps which must be followed.

There are bigger changes, however, to the part of the document which pertains to a health care employee who has actually contracted a “confirmed or suspected” case of COVID-19. Starting Tuesday, entities (employers) “may request” the HCP (employee) “to work if all of the following conditions are met.” It also says entities can ask specialists to return to work by skipping some of the required steps (note point number six):

  1. Furloughing such HCP for the entire 14-day quarantine period would result in staff shortages that would adversely impact operation of the healthcare entity.
  2. However, to be eligible to return to work, HCP with confirmed or suspected COVID-19 must have maintained isolation for at least 7 days after illness onset, must have been fever-free for at least 72 hours without the use of fever reducing medications, and must have other symptoms improving.
  3. If HCP is asymptomatic but tested and found to be positive, they must maintain isolation for at least 7 days after the date of the positive test and, if they develop symptoms during that time, they must maintain isolation for at least 7 days after illness onset and must
    have been at least 72 hours fever-free without fever reducing medications and with other symptoms improving. There are concerns that a COVID-19 positive, asymptomatic HCP may be pre-symptomatic and there are growing concerns about transmission of COVID19 from asymptomatic, infected individuals.
  4. Staff who are recovering from COVID-19 and return to work after seven days should wear a facemask while working until 14 days after onset of illness, if mild symptoms persist but are improving.
  5. To the extent possible, staff working under these conditions should preferentially be assigned to patients at lower risk for severe complications (e.g. on units established for patients with confirmed COVID-19), as opposed to higher-risk patients (e.g. severely
    immunocompromised, elderly). As this pandemic grows, all staff will need to be assigned to treat all patients regardless of risk level.
  6. In the rare instance when an HCP, with unique or irreplaceable skills critical to patient care, is affected by COVID-19, the healthcare entity may contact NYSDOH to discuss alternative measures to allow such HCP to safely return to work before seven days have elapsed.

A similar document originated with the DOH’s Office for People with Developmental Disabilities (OPWDD). That document says employees who work with the disabled are “essential services” personnel and can return to work under after analogous steps are taken. The lists or OPWDD-related jobs are not the same, however, as the lists for medical personnel.

Albany, New York attorney Dena DeFazio analyzed the OPWDD document in a recent blog post on her law firm’s website.  She notes that the four corners of the protocol itself is “absent” any notification obligations:

[Q]uestions such as whether providers are required to notify staff and the loved ones of the individuals served of suspected, exposed, or confirmed cases of COVID-19, what (if anything) this notification must entail, and if notification obligations differ depending on who the subject is still remain unresolved.

Her colleague, Fran Ciardullo, similarly analyzed the broader DOH guidance:

Entities must be diligent in documenting adherence to the letter of the protocols. Providers and employees must be questioned about possible exposure to COVID-19 both within and outside the health care setting. Symptoms—or a lack thereof—must be documented at the beginning of each shift. Temperature checks must be enforced and documented. Employees must certify they have followed the guidelines for isolation and quarantine. If a health care entity or practice rigidly follows the guidelines, it is unlikely that any liability will result in the event there is a COVID-19 transmission.

While these protocol documents apply to employees covered by the DOH and OPWDD, other protocol documents cover essential personnel generally who are outside the health and disability services sectors.

Tuesday’s (New) DOH Protocol:

NYS DOH March 31st COVID-19 Protocol for Health Care Workers by Law&Crime on Scribd

Saturday’s (Old) DOH Protocol:

NYS DOH March 28th COVID-19 Protocol for Health Care Workers by Law&Crime on Scribd

Saturday’s OPWDD Protocol:

NYS OPWDD March 28th COVID-19 Protocol for Essential Personnel by Law&Crime on Scribd

Hat tip to attorney and former Law&Crime host Amy Dash, who helped uncover several of these documents.

[Image via Spencer Platt/Getty Images]

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Aaron Keller holds a juris doctor degree from the University of New Hampshire School of Law and a broadcast journalism degree from Syracuse University.  He is the anchor and executive producer of Law&Crime Daily on the Law&Crime Network.  The broadcast is a recap of the day's most compelling trials and court proceedings.  He also serves as an editor for the Law&Crime website. DISCLAIMER:  This website is for general informational purposes only.  You should not rely on it for legal advice.  Reading this site or interacting with the author via this site does not create an attorney-client relationship.  This website is not a substitute for the advice of an attorney.  Speak to a competent lawyer in your jurisdiction for legal advice and representation relevant to your situation.