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PANDEMIC: COVID-19 RESOURCES & UPDATES

Mask Guidance for Patient and Staff in the COVID Era

Posted/Updated on 2/10/21 3:00 PM

Mask use during the COVID-19 Pandemic has been a controversial subject. As a healthcare employer you are responsible for ensuring the safety of your patients, staff, and the public. This can be a difficult feat while simultaneously balancing adherence to national public health authority guidance, federal law, and varying local and state ordinances related to mask use. This page will outline the basic recommendations for mask use and assist you in situations where mask use exceptions are requested by both patients and staff.

Federal Facemask Guidance

CDC

It is important to understand CDC mask recommendations for the public and healthcare personnel (HCP). The CDC guidance is based on the concept of “universal source control” and is therefore applicable to patients, visitors, and HCP who are inside the walls of your practice regardless of symptoms:[1]

  • Patients and visitors should wear their own cloth face covering. If they do not have one, they should be offered a facemask.
  • HCP should wear facemasks at all times, in both patient and non-patient care areas.
  • Masks are not recommended for children under 2 years of age, people with difficulty breathing, or people who cannot remove the mask without assistance.
  • There are certain situations where it may not be feasible for patients or staff to wear a mask, including but not limited to, when the use of one worsens an underlying physical or mental health condition.
    • Consider adaptations or alternatives in unique situations to increase mask-wearing feasibility.

Mask use should be incorporated into your existing infection control policies and procedures as an element of Standard Precautions during the COVID-19 pandemic. Keeping these policies and procedures up-to-date and educating HCP on guidelines is important as they will be answering questions and directing patients according to these guidelines.

OSHA

OSHA requires that employers provide a safe and healthful workplace that is free from serious recognized harms, and that both employers and employees comply with OSHA standards.[2] Ensuring your infection control policies and procedures are updated to include the mask-wearing requirements for patients, visitors, and staff in accordance with CDC guidance and applicable OSHA standards is can ensure a safe work environment and facilitate documentation of compliance. Employees who believe employers are not following CDC guidelines in order to protect them from contracting COVID-19, have a right to file a complaint and are protected from retaliation as a result of voicing their health or safety concerns.[3] This scenario, among others, is specifically addressed on OSHA’s COVID-19 FAQ page under the topic of Healthcare. OSHA offers detailed industry specific guidance for employees and employers at increased risk of occupational exposure to COVID-19. These are aligned with CDC recommendations and applicable OSHA standards.

Employees may insist on wearing more than the recommended personal protective equipment (PPE). It is important for workers to feel safe and supported. If employees are providing their own protective equipment, the employer is responsible to ensure its adequacy.[4] For example, N95 masks require yearly fit testing to properly ensure employees are protected.

Employees who understand the hazards of the work environment are more likely to be compliant with the practice’s infection control policy. Provide basic infection control education per OSHA guidelines on PPE, including how to properly wear masks. Additional training may assist employees to become compliant with minimum standards.

Local and State Face Mask Ordinances

Throughout the COVID-19 Pandemic, every state in the U.S. has addressed masks and made recommendations for the public to some degree.[5] This downloadable chart is regularly updated to reflect the most current state mask requirements and recommendations. In addition to state ordinances, localities may implement additional requirements. At minimum, you will be required to enforce these to avoid any associated fines or penalties. Since mask ordinances may vary over time and offer vague exceptions for patients with medical conditions, which may not be tailored to the medical setting, it is vital that you follow your internal policies and procedures based upon health authority guidance.

Requests for Face mask Exceptions and Refusals

Many practices are encountering patients and HCP who refuse to wear face masks. This refusal may be based on a medical issue, disability, or non-compliance. It is important to consider certain situations where it may not be feasible for patients or HCP to wear a mask and to be prepared for multiple scenarios. Practices should have policies and procedures in place to protect the safety of patients and HCP in these situations. 

Face Mask Refusal due to Medical Issues

Certain underlying health conditions may make mask use less feasible for patients and staff. Some patients may have anxiety or claustrophobia and feel as though they cannot breathe. Others may have underlying pulmonary conditions such as COPD or asthma and be concerned about mask effects on their oxygen levels. It is important to empathize; however, the reality is that there are very few medical conditions that prohibit mask use. The CDC outlines who should not wear a mask and offers adaptation recommendations. Some common medical concerns posed by patients are discussed in more detail by the chief medical officer of the American Lung Association, Dr. Albert Rizzo, in a Medscape commentary. He addresses specific medical concerns such as asthma, COPD, and hypoxia concerns and offers advice on how to approach these concerns when raised.

Acknowledging concerns, providing education, and suggesting adaptations or alternatives are ways to address many of the medical-related safety concerns posed by patients and HCP. The education process should include information on the purpose of wearing a mask, specifically that is designed to protect those around you by limiting droplets emitted through talking, sneezing, and coughing. Additionally, it is important for patients to understand that even in the absence of symptoms these droplets may be infectious.[6]

Alternatives that cover both the nose and mouth should be considered in varying circumstances. The patient should be encouraged to try the mask or mask alternative or adaptation during the visit. Reassure the patient that it can be removed if they experience problems and reschedule the visit if needed. Additionally, oxygen level monitoring with pulse oximetry may be useful to ease anxiety related to hypoxia concerns.

It is important to note that while mask alternatives may be appropriate for some office staff and patients, HCP who are patient-facing are required to wear surgical masks or respirators and will not have the same ability to utilize mask alternatives. HCP should comply with the CDC’s mask recommendations for HCP.

Face Mask Refusal due to Disability—Americans with Disabilities Act

It is important to understand the Americans with Disabilities Act (ADA) as it relates to mask exception requests by HCP or patients due to a disability. Your approach to these requests should be the same as your approach to any other ADA Employee Accommodation or Patient Modification request.

Employee Disability
Title I of the ADA covers employment. Generally, after an employee informs an employer of a disability, a request can be made by the employee for a reasonable accommodation. The employer is not required to make the accommodation if it causes significant difficulty or expense to business operations or if it poses a significant risk to the health or safety of the individual or others.[7] The EEOC enforces the laws that prohibit employee discrimination. Common COVID-19 ADA related questions for employers are answered on the EEOC website, including how to handle employee accommodation requests related to modified protective gear in settings where PPE is required for infection control:

“An employer may require employees to wear protective gear (for example, masks and gloves) and observe infection control practices (for example, regular hand washing and social distancing protocols). However, where an employee with a disability needs a related reasonable accommodation under the ADA (e.g., non-latex gloves, modified face masks for interpreters or others who communicate with an employee who uses lip reading, or gowns designed for individuals who use wheelchairs), or a religious accommodation under Title VII (such as modified equipment due to religious garb), the employer should discuss the request and provide the modification or an alternative if feasible and not an undue hardship on the operation of the employer's business under the ADA or Title VII.”[8]

When asked for a reasonable accommodation by an employee, you can request documentation regarding the medical condition restricting the use of a facemask in order to determine if and what reasonable accommodation may be possible.[9] If this documentation supports a medical reason or specifically includes a doctor’s order for a mask exception, reasonable accommodations may be reviewed with the employee and considered such as:

  • Job duty modifications
  • Work from home alternatives if essential job duties can be performed remotely
  • Alternate face coverings depending on job duties and patient interaction

Employees who cannot wear masks and for whom no accommodation can be is found, may be placed on paid or unpaid leave until face coverings are no longer required or their medical condition resolves.

Patient and Visitor Disability
Title III of the ADA, which covers places of public accommodation including medical offices, limits the manner in which patients and visitors can be asked about their disabilities. You may be familiar with these limitations due to other scenarios, such as those related to service animals. In the case of service animals, a place of public accommodation should not ask about the nature of a person's disability but may ask if the animal is required because of a disability and what task the animal has been trained to perform.[10] Consider taking the same approach when a patient or visitor refuses to wear a mask. Simply ask if the reason they are unable to wear a mask is due to a disability.[11] If it is, then a reasonable modification should be reviewed and agreed upon such as:

  • Alternate face covering styles such as a scarf, bandana, or face shield
  • Allowing patients to wait in their car until roomed so that the face covering can be worn for less time
  • Depending on the specialty, allowing certain services to occur via drive through, such as vaccinations
  • Rescheduling the appointment to a telemedicine visit

If no alternative is tolerable, and depending on available HCP PPE (e.g., N95 masks), rescheduling the visit to the end of the same or different day when no other patients are present.

These solutions should be agreed upon prior patient presentation to your practice. For existing patients, this impact may be minimal depending on your practice. New patients, however, may present with new mask-wearing challenges that require additional time for ADA compliance. Ensure both existing and new patients are informed of the mask requirement when they make appointments or when they are called to confirm the appointment. This allows for reasonable modifications to be discussed prior to their arrival.

Patients Who Refuse to Comply with Your Face Mask Policy
It is unknown how widespread mask refusal is, but setting clear expectations, including reviewing your face mask-use policies and procedures prior to patients arriving to clinic, is crucial. This gives patients the opportunity to understand your expectations and decide whether they wish to comply and keep their appointment, or not comply and therefore postpone or cancel their appointment. This process actively involves the patient in the decision-making process and removes the element of “abandonment” by establishing conditions for care rather than simply denying care.[12] These same principles apply in the event patients fail to comply with mask-use policies and procedures upon arrival. When this is the case, consider offering them telehealth visits or asking them to leave the clinic. Remember to document these processes and patients’ responses thoroughly in the medical record.

Asking patients to wear a masks is a reasonable way to provide a safe environment for staff, patients, and visitors. Individual rights protected by the ADA and other state and federal laws must be balanced with public health authority guidance to protect the health and safety of all during the COVID era.

Patient Requests For Medical Exemptions For Face Mask Use

HCP are increasingly being asked to provide medical exemptions for mask use. Responding to these requests for accommodations can be challenging since some requests are due to intolerance and not due to disability. If asked to sign a mask waiver for an established patient, ensure that the disability or accommodation is legitimate. Patients with non-legitimate requests should be educated about the importance of masks to protect those around them, not simply to protect themselves. The American Hospital Association (AHA) offers resources through their Wear A Mask Campaign. If you receive requests from patients for mask exemptions, consider the following:

  • Evaluate all patient requests for medical exemptions.
  • Use your medical expertise to determine if a patient requires an accommodation.
  • Clearly communicate why the request was denied. Do not use medical jargon, which can confuse patients about why their request was denied.
  • Document rationales when refusing a patient’s requests for exemptions.

Resources For Developing Mask Policies

NORCAL Group: Sample Mask Policy for Employees
NORCAL Group: Sample Mask Policy for Patients and Visitors
NORCAL Group: Mask Policy Recommendations
ADA: FAQS Regarding Face Mask Policies
Medical Office Manager: How to create and implement a mandatory face mask policy at your medical office (available with free membership)

Additional Resources

Kilpatrick Townsend: Masks and COVID-19: Statewide Requirements and Recommendations
The Joint Commission: Statement on Universal Masking of Staff, Patients, and Visitors in Health Care Settings
Physicians Practice: Prepare for patients who refuse to wear a mask in your practice
Florida Healthcare Law Firm: My patient won’t wear a mask: Now what?
Medscape: ‘Doc, Can I get a mask exemption?’
CDC: How to Safely Wear and Take off a Mask Poster
CDC: Help Protect Yourself and Others in Public Settings Poster
CDC: Sample Social Media Messages Regarding Masks
AMA: Overcoming additional barriers to care for deaf and hard of hearing patients during COVID-19


[1] The ADA: Questions and Answers. U.S. Equal Employment Opportunity Commission website. https://www.eeoc.gov/laws/guidance/ada-questions-and-answers. Published May 1, 2002. Accessed November 16, 2020.

[2] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. U.S. Equal Employment Opportunity Commission website. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Updated September 8, 2020. Accessed November 16, 2020.

[3] ADA Implications: I Don’t Want to Wear a Mask. Smith Amundsen website. https://laborandemploymentlawupdate.com/2020/05/08/ada-implications-i-dont-want-to-wear-a-mask/. Published May 8, 2020. Accessed November 16, 2020.

[4] 29 CFR §1910.132(b) (2016). OSHA website. https://www.osha.gov/laws-regs/regulations/standardnumber/1910/1910.132

[5] Masks and COVID-19: Statewide Requirements and Recommendations. Kilpatrick Townsend website. https://www.kilpatricktownsend.com/-/media/2020/Masks-and-COVID-19-7242020.ashx. Published July 16, 2020. Accessed November 16, 2020.

[6] How to Select, Wear, and Clean Your Mask. https://www.cdc.gov/coronavirus/2019-ncov/prevent-getting-sick/about-face-coverings.html. Updated October 29, 2020. Accessed November 16, 2020.

[7] The ADA: Questions and Answers. U.S. Equal Employment Opportunity Commission website. https://www.eeoc.gov/laws/guidance/ada-questions-and-answers. Published May 1, 2002. Accessed November 16, 2020.

[8] What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws. U.S. Equal Employment Opportunity Commission website. https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws. Updated September 8, 2020. Accessed November 16, 2020.

[9] ADA Implications: I Don’t Want to Wear a Mask. Smith Amundsen website. https://laborandemploymentlawupdate.com/2020/05/08/ada-implications-i-dont-want-to-wear-a-mask/. Published May 8, 2020. Accessed November 16, 2020.

[10] 28 CFR § 36.302(c)(6). ADA website. https://www.ada.gov/regs2010/titleIII_2010/titleIII_2010_regulations.htm#subparta. Current as of January 17, 2017. Accessed November 16, 2020.

[11] ADA Implications: I Don’t Want to Wear a Mask. Smith Amundsen website. https://laborandemploymentlawupdate.com/2020/05/08/ada-implications-i-dont-want-to-wear-a-mask/. Published May 8, 2020. Accessed November 16, 2020.

[12] Buppert C. Patients Who Refuse to Wear a Mask: Responses That Won't Get You Sued. Medscape website. https://www.medscape.com/viewarticle/933606. Published July 9, 2020. Accessed November 16, 2020.

Topics: COVID-19, Mask Guidance

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The information provided on this site offers risk management recommendations and resource links. The information does not constitute a legal opinion, nor is it a substitute for legal advice. Legal inquiries about this topic should be directed to an attorney. NORCAL Group makes no representation regarding compliance with state or federal law by offering these resources. These documents and links are provided for your convenience and reference only, and the provision of these materials does not mean NORCAL Group is affiliated or associated with these organizations.