Refusing to Wear Masks

Angie Szumlinski
|
July 29, 2020
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What can you do? The rules on mask wearing and source control have now come to a rough consensus. Masks are now mandatory in most states and service can be denied to anyone entering a facility without a mask. There are currently no cases or court decisions on whether it is negligence to allow an unmasked person to remain in the center; however, there are basic legal principles and cases from other situations to tell us what constitutes negligence.

Negligence:

  • Duty: Obligation of one person to another
  • Breach: Improper act or omission, in the context of proper behavior to avoid imposing undue risks of harm to other persons and their property
  • Damage
  • Causation: That the act or omission caused the harm

As providers, we have a duty to provide reasonably safe public spaces. Unmasked individuals are a risk to others, so the “breach” element is satisfied if we fail to impose mandatory safety measures. Causation could be proven or at least inferred, if contact tracing of an individual with COVID showed that the only contact likely to have exposed the individual to the virus was an unmasked individual in a facility, especially if the unmasked individual was COVID-positive before, during or shortly after the exposure.

So, what if you have a resident who refuses to wear a mask and says it is for medical reasons? First, I would contact their primary care physician to discuss the risks as there are exceptions for some medical conditions. If the physician agrees, consider asking the resident to “put the mask on and see how you do,” monitor the resident visually and apply a pulse oximeter with the mask off and the mask on. It is also recommended that you try different types of masks as there may be one that is tolerated better than another (usually loose fitting, cloth masks are more comfortable).

Providers are under a lot of pressure to meet CDC, CMS and OSHA requirements that tend to change frequently. Don’t leave yourself open for legal scrutiny as well- do the right thing for the right reasons to assist in preventing the spread of infection. It isn’t going to be easy but if it were, everyone would be in our business! As always, stay well, stay safe, and stay tuned. Oh and wear a mask!


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