A patient’s right to masked healthcare providers

By Katherine A. Macfarlane

In May 2023, Mass General Brigham teaches his patients that they “cannot ask staff members to wear a mask because our policies no longer require it”.

Following patient protests, the hospital updated its policies with a flawed solution, announcing that “patients can request, but providers determine when and if mask-wearing in a particular situation is clinically necessary.”

This episode highlights the difficult circumstances people with disabilities face in the United States when accessing essential care: On the one hand, the law surrounding reasonable modifications to health care is well established. On the other hand, the practical reality of health care in the United States leaves little room for individualized accommodation and self-advocate patients vulnerable to retaliation.

The legal right to masked healthcare providers

Both Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) prohibits health care institutions and providers from discriminating against qualified persons with disabilities on the basis of their disability in the provision of benefits and services. In addition, Covered Entities must “[m]make reasonable changes to their policies, practices and procedures to avoid discrimination on the basis of disability, unless they can demonstrate that a change would fundamentally change the nature of their service, program or activity. In addition, Covered Entities must “[d]designate a responsible employee to coordinate its efforts to comply with Section 504 and the ADA.

A person who is at higher risk of death or serious complications from COVID-19 may be a disabled person right to reasonable modification. In the workplace, an employee does not need to use magic words, or even the word accommodation, to trigger the employer’s obligation to assess a request for reasonable accommodation. As the eighth circuit has explainan employee need only provide their employer with “sufficient information that, in the circumstances, the employer can fairly be said to have knowledge of both the disability and the desire for accommodation”.

In a health care setting, a patient’s high-risk status is likely known. An effective Section 504/ADA coordinator should provide training to teach staff how to identify masking requests that trigger the requirement to consider disability-based modification. That masking rules implicate the rights of people with disabilities is well documented, especially in light of recent controversies in Massachusetts And New York City.

The assessment of reasonable modification and accommodation requests must be context-specific. As a recent article in Annals of Internal Medicine explains, universal masking remains beneficial in healthcare because caregivers often report to work when sick, a practice known as presenteeism. Additionally, healthcare facilities are the very place patients go to when they are sick. Without universal masking requirements, unmasked sick patients can infect healthcare workers and other patients with COVID-19.

Practical Barriers to Masking Compliance

A patient’s right to receive care from a masked healthcare provider faces practical obstacles. First, a patient may run out of time to request a change and have it implemented before a health care provider walks into the patient’s exam room. Imagine a high-risk patient who arrives for their annual ophthalmology appointment not knowing what the practice’s masking policy is. When the patient approaches the receptionist’s desk to check in, he notices that every staff member is unmasked. The patient discreetly asks the receptionist to inform both the technician who will measure the patient’s intraocular pressure and the doctor who will examine the patient’s optic nerve that they must wear masks.

A technician retrieves the patient’s file from the receptionist’s desk, and the receptionist transmits the masking request. The technician complies and is masked as he flies over the patient’s face to place anesthetic drops in his eyes. The technician then exits the room and moves on to another patient.

Like most doctor’s offices, this office is busy and sometimes chaotic. Doctors and their staff move quickly, sometimes limiting appointments to five minutes or less. Neither the receptionist nor the technician communicated to the doctor that the patient wants the doctor to mask. Accordingly, the doctor enters the examination room, sits on a stool, faces the patient, leans into the ophthalmoscope, orders the patient to do the same, and exhales directly into the patient’s face. The modification requested by the patient was beyond reproach, but no system guaranteed that it would be implemented.

Additionally, policies like Mass General’s, which first explicitly and then implicitly discourage patient mask requests, create a conflict of interest by assigning the decision of whether a mask is legally necessary to the same person who decides whether to wear one. Some doctors may refuse to mask because they believe such a requirement violates their political beliefs, regardless of the science. Others may simply believe the “discomfort” of a mask is beneath them.

If patients persist in asking their doctor to mask themselves after an initial refusal, care may be interrupted, on the grounds that the doctor-patient relationship is broken. Discontinuation of care notice must be provided within a reasonable time so that a patient can transfer care without interrupting treatment. In practice, “reasonable time” often means 30 days. Given nationwide doctor shortages, 30 days notice is generally insufficient to transfer care seamlessly. Many offices will not schedule a new appointment with a patient without first receiving a referral or medical records, which also take time to obtain. A Survey 2022 doctors’ offices in 15 major metropolitan areas found that the average wait time to see, say, a cardiologist, was 26.6 days. The possibility of a cessation of care becomes a threat intended to ensure the patient’s obedience.

Best Practices

Healthcare facilities wishing to ensure that high-risk patients are treated by providers wearing masks could take the following steps. First, a facility could revert to universal masking, ensuring that no patient has to undertake the work of negotiating masking with their doctor. Second, a facility could ask patients if they want their healthcare providers to wear a mask on an intake form. The form would be returned to a receptionist who would communicate the patient’s preference, using something as simple as a sticker affixed to the patient’s chart. A physician who fails to comply would be subject to any consequences the physician would face for violating any other workplace rules.

Enforcing a healthcare provider’s mask requirement should not be left to patients. Masking is an inherently charged topic with the potential to create tension in the patient-physician relationship. This conflict can compromise the quality of care or create or exacerbate a patient’s medical trauma. High-risk disabled patients have suffered enough.

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