Practice of Medicine
Enforcing Patient Face Masks and Maintaining Regulatory Compliance
August 17, 2021
Disclaimer: As this situation is evolving daily, MagMutual recommends reviewing the latest guidelines for the most current information regarding face masks. Visit the MagMutual COVID-19 Resource Center to learn more.
As a private entity, healthcare organizations can require patients and visitors to wear face masks to stop the spread of COVID-19 and protect the health and safety of others, including other patients and the organization’s employees. It is increasingly likely that a healthcare organization may encounter a patient who asserts that they are not required to wear a face mask. The most common reasons a patient will give with respect to not wearing a face mask are: (1) The patient does not have access to a face mask; (2) The patient does not want to wear a face mask because it infringes on their personal liberties; (3) The patient has a disability protected under the Americans with Disabilities Act (ADA) and is not required to wear a face mask; and (4) The patient has a religious belief protected under the Civil Rights Act of 1964 and is not required to wear a face mask.
If you do encounter a patient who is not wearing and doesn’t want to wear a face mask, what should you do? First, if a patient asserts they do not have access to a face mask or forgot their face mask at home, a healthcare organization is allowed to charge the patient for a face mask. If the patient does not want to pay for a face mask or the healthcare organization determines it does not want to provide a face mask free-of-charge, the healthcare organization can require the patient to reschedule their appointment and only return when the patient brings their own face mask.
Second, as a private entity, a healthcare organization is allowed to require all patients to wear a face mask for public health and employee safety reasons. A patient’s argument that this policy infringes on their personal liberties is not a successful argument against a healthcare organization that enforces this policy uniformly for all patients. It is important to have a conversation with these patients about why you require face masks for the safety of all patients and staff that enter your healthcare organization. You should be prepared to offer alternatives for these patients, such as a telemedicine visit, ask the patient to step outside the practice and perform a telephone consultation to triage the patient’s medical condition, manage prescription refills or referrals, and develop a plan for future care. If the patient believes they are experiencing a true medical emergency, you may elect to call EMS or advise the patient to proceed to the nearest urgent care or emergency department.
Third, while the ADA provides that a healthcare organization must make certain reasonable accommodations for patients with disabilities, this is an extremely limited exception with respect to face masks and would generally apply to patients with respiratory disabilities such as asthma, chronic obstructive pulmonary disease, cystic fibrosis, post-traumatic stress disorder, autism and/or cerebral palsy. A patient’s assertion that a face mask is “uncomfortable” or “makes it hard to breath” is not a disability and insufficient under the ADA for a reasonable accommodation.
While a healthcare organization is not allowed to ask what the patient’s disability is, for established patients, it is likely one of the respiratory conditions would appear in the patient’s medical record. Further, the healthcare organization must only make a “reasonable modification” that would include allowing the patient to wear a scarf, loose face covering or a full-face shield instead of a face mask. Again, this does not mean that the patient is exempt from the healthcare organization’s face mask policy and that the patient does not have to wear any covering. This only means that the healthcare organization should provide a reasonable alternative.
Fourth, patients, including minors, may make claims that they cannot wear a face mask because it goes against their religion and because of that they need a religious accommodation. This argument is not valid. The Civil Rights Act of 1964 prohibits most private entities from discriminating against people because of their religion. But religious discrimination claims would require proof that the healthcare organization enacted the face mask policy intending to discriminate against patients because of their religion. Healthcare organizations that impose a uniform mask policy do not need to worry about a religious discrimination claim.
If a patient comes to the practice with an ID card that indicates the patient is exempt from the face mask requirement, the Department of Justice has indicated that these cards are fake and fraudulent.
For all four scenarios described above, it is important to document your interactions with the patient in the patient’s medical record. That documentation should include the patient’s refusal or inability to comply with the mask policy and their reasoning, alternatives to on-site care that were offered to the patient, risks about delaying care, any medical advice provided and any recommendations for obtaining emergent care at another healthcare facility.
^ 42 U.S. Code § 12102 (1990); Southeast ADA Center and Burton Blatt Institute at Syracuse University. (2020). Disability Issues Brief: The ADA and Face Mask Policies. Syracuse University.
^ 42 U.S. Code § 35.130(7)(i); Southeast ADA Center and Burton Blatt Institute at Syracuse University. (2020). Disability Issues Brief: The ADA and Face Mask Policies. Syracuse University.
^ 42 U.S. Code §§ 2000a, 2000e; “Don’t Tread on Me”: Customers’ Religious Objections to Mandated Use of Face Masks in the Era of COVID-19, Ward & Smith, P.A. (Sept. 3, 2020), https://www.wardandsmith.com/articles/dont-tread-on-me-customers-religious-objections-to-mandated-use-of-face-masks-in-the-era-of-covid-19.
The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision about how to use the information provided rests solely with you, the PolicyOwner.
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The information provided in this resource does not constitute legal, medical or any other professional advice, nor does it establish a standard of care. This resource has been created as an aid to you in your practice. The ultimate decision on how to use the information provided rests solely with you, the PolicyOwner.