In light of the end of the public health emergency, the Agency for Health Care Administration (AHCA) and Florida Department of Health (DOH) have jointly developed standards that provide the dos and don’ts of face mask mandates in health care settings. The new standards describe under what circumstances a health care provider can require a patient visitor, or employee to wear a mask, and what opt-out options must be available.
By August 1, 2023, health care practitioners need to create masking policies and procedures for their respective health care settings. These policies and procedures must align with the standards created by AHCA and cannot require any person to wear a mask for any reason other than those listed in the standards. Failure to adhere to the requirements set in the standards is a violation that may result in disciplinary action by AHCA or regulatory boards such as the Board of Medicine.
The Standards
For Patients: Patients may only be required to wear a mask when the patient is in a common area and is exhibiting signs or symptoms of or has been diagnosed with an infectious disease that can be spread through droplet or airborne transmission. A common area is an area within a health care facility where patients are not treated, diagnosed, or examined.
If a health care provider chooses to require masking for any patient, the provider must include a provision for opting out of wearing a mask that meets the requirements of the Florida Patient Bill of Rights and Responsibilities. The new standard does not provide specific guidance on what the opt-out provision must include but considerations to keep in mind include a patient’s right to make decisions in an informed manner, the right to have their individual dignity respected, and their responsibility to respect the reasonable and responsible expectations of the provider or facility. It may also be important to consider how the opt-out provision will apply to minors, and whether parental consent will be necessary.
For Visitors: Visitors may only be required to wear a facial covering when the visitor is (1) exhibiting signs or symptoms of or has been diagnosed with an infectious disease that can be spread through droplet or airborne transmission, (2) in a sterile area or an area where sterile procedures are being performed, (3) in an in-patient or clinical room with a patient who is exhibiting signs or symptoms of or has a diagnosed infectious disease that can be spread through droplet or airborne transmission, or (4) visiting a patient who has been determined to have a compromised immune system increasing their risk of infection or whose practitioner has determined a mask is necessary for the patient’s safety.
In situations where a health care practitioner or facility establishes a policy requiring a visitor to wear a mask and an alternative method of infection control or infectious disease prevention is available, an opt-out provision must be included in such policy.
For Employees: Employees must be permitted to opt-out of wearing a facial covering unless they are (1) conducting sterile procedures, (2) working in a sterile area, (3) working with a patient who has been determined to have a compromised immune system increasing their risk of infection or whose practitioner has determined a mask is necessary for the patient’s safety, (4) with a patient on droplet or airborne isolation, or (5) engaging in non-clinical potentially hazardous activities that require facial coverings to prevent physical injury or harm in accordance with industry standards. The facility or provider will need to evaluate their current infection control obligations as conflicts such as existing requirements that employees who do not get a flu vaccine must wear a mask will need to be addressed.
YES! PLEASE SIGN ME UP TO RECEIVE EMAIL ALERTS FROM OTHER GUNSTER PRACTICE AREAS.
This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication.
About Gunster
Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 13 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients’ stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Boca Raton, Fort Lauderdale, Jacksonville, Miami, Naples, Orlando, Palm Beach, Stuart, Tallahassee, Tampa Bayshore, Tampa Downtown, Vero Beach, and its headquarters in West Palm Beach. With more than 260 attorneys and consultants, and over 270 committed professional staff, Gunster is ranked among the National Law Journal’s list of the 500 largest law firms and has been recognized as one of the Top 100 Diverse Law Firms by Law360. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com.
