“Littler Ask the Experts”

Through a partnership with Littler Mendelson P.C Labor & Employment Law Solutions, we are excited to share the “Ask the Experts” Article. Each week, we will feature a new question, from you our members, related to workplace issues and topics that will be answered from our experts and partners at Littler. 

This week’s question comes from one of our Private Duty Home Care members and concerns keeping caregivers and clients safe during the public health emergency.

Question: “I provide services in a state that has a mask mandate for people when they are not able to maintain social distance (six feet or more). We have tried to enforce this with our clients and family members, asking them to wear masks when our caregivers are in the home, but many of the clients are not following this guidance.  Can I ask them to sign something like a waiver? Should I? What if one of my caregivers gets sick or is impacted by COVID because a client doesn’t want to wear a mask?”

Answer by Will Vail 

Great questions.  Your caregivers should be wearing at least cloth face coverings whenever they are in a client’s home regardless of whether or not the client or anyone else in the client’s home is wearing a cloth face covering or face mask.  Putting aside state mandates, you are right that it is a best practice to have the client also wear at least a cloth face covering when the caregiver is present in the home.  If both parties wear a mask, the chance of transmission is substantially reduced.

Even if there is a mask mandate in your state, there likely are exceptions for people who cannot wear them for medical reasons.  And there will be some clients who cannot wear them because of this.  In those situations, you may want to ask your caregiver to wear an N-95 respirator (assuming you have a respiratory program in place).  If that is not an option, then you should advise your caregiver of the risks associated with caring for the client who cannot wear a mask and allow the caregiver to opt out of the service.  This may result in you having to discharge the client, but that might be the best business decision for you given the alternative of “forcing” a caregiver to work in the home.  If you were to require a caregiver to work in the home, then you could expose yourself to both litigation risk as well as reputational risk from the caregiving community (you probably would no longer be an employer of choice in this industry).

To your question about waivers, there is no full waiver you could have your caregiver sign that would protect you.  Employees have a right to file a workers’ compensation claim if they believe they contracted COVID-19 at work.  Littler’s Home Care Industry COVID-19 Response Package includes a waiver that you could have your caregiver sign where the caregiver would agree only to go the workers’ compensation route (i.e., not sue you for intentionally exposing the caregiver to COVID-19) in exchange for you promising not to contest the workers’ compensation claim.  If you did not have your caregiver sign such a waiver, then your best defense likely would be to show that the caregiver did not contract it from the client, which of course will depend on the various facts and circumstances. 

If the client or those who live in the client’s home refuse to wear at least a cloth face covering, and there is no valid underlying medical reason, then you should review your state’s mask mandate to see if there is possibly an exception that would allow this.  If there is no exception, then you could bring that to your client’s attention.  In doing so, you could ask the client to indemnify you in the event your caregiver were to contract COVID-19 and make a claim against you.  If the client refuses, you would have to make a business decision as to whether to continue to provide services.  But even if the client signs the indemnification provision, you should advise your caregivers of the situation (just as in the situation where the client has a medical reason preventing him or her from wearing a mask) and ask whether the caregiver would like to continue servicing the client.  If you have no willing caregivers, you may have to terminate service (or at least go through the analysis discussed above).

About Littler

At Littler, we understand that workplace issues can’t wait. With access to more than 1,500 employment attorneys in over 80 offices around the world, our clients don’t have to. We aim to go beyond best practices, creating solutions that help clients navigate a complex business world. With deep experience and resources that are local, everywhere, we are fully focused on your business. With a diverse team of the brightest minds, we foster a culture that celebrates original thinking. And with powerful proprietary technology, we disrupt the status quo – delivering groundbreaking innovation that prepares employers not just for what’s happening today, but for what’s likely to happen tomorrow. For over 75 years, our firm has harnessed these strengths to offer fresh perspectives on each matter we advise, litigate, mediate, and negotiate. Because at Littler, we’re fueled by ingenuity and inspired by you.

About Will Vail, Special Council

William Vail brings a wealth of private practice and in-house experience to every matter he handles. For nearly seven years, he was lead employment counsel two separate divisions of largest post-acute health care provider in the nation (the home health, hospice and community care division and nursing center division). He later was lead employment and litigation counsel for the largest home health and hospice provider in the nation following a corporate reorganization. In addition to a wide variety of employment issues, Will is familiar with False Claims Act, professional liability and general liability matters related to healthcare operations. 

Will is a core member of Littler’s healthcare practice group. He has experience litigating across the United States, providing advice and counsel to both legal and non-legal stakeholders, performing due diligence related to mergers and acquisitions, helping start-ups begin operations in a compliant method, winding down operations, conducting management training, and assisting in the integration of new entities into going concerns. 

William Vail began his legal career in 2004 as a law clerk to a federal judge sitting in the Western District of Virginia. He then transitioned to private practice in Louisville, Kentucky, for a regional full-service firm and later a national labor and employment boutique firm. At Littler, Will is based in Louisville as well as Atlanta. 

*Not licensed to practice law in Georgia