By Katherine A. Macfarlane
In May 2023, Mass General Brigham instructed its 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 an imperfect fix, announcing that “patients can ask, but providers determine when and if masking in a particular situation is clinically necessary.”
This episode highlights the uneasy circumstances that people with disabilities face in the U.S. while accessing essential care: On the one hand, the law surrounding reasonable modifications in health care is well-settled. On the other, the practical reality of U.S. health care leaves little room for individualized accommodation and self-advocating patients vulnerable to retaliation.
The Legal Right to Masked Health Care Providers
Both the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act of 1973 (Section 504) bar covered health care facilities and providers from discriminating against qualified individuals with disabilities on the basis of disability in the provision of benefits and services. Additionally, covered entities must “[m]ake reasonable modifications in their policies, practices and procedures to avoid discrimination on the basis of disability, unless they can demonstrate that a modification would fundamentally alter the nature of their service, program or activity.” Further, covered entities must “[d]esignate a responsible employee to coordinate their efforts to comply with Section 504 and the ADA.”
An individual who is at higher risk of death or serious complications from COVID-19 may be an individual with a disability entitled to a reasonable modification. In the workplace, an employee need not use any magic words, or even the word accommodation, to trigger an employer’s obligation to evaluate a request for reasonable accommodation. As the Eighth Circuit has explained, an employee need only provide their employer “with enough information that, under the circumstances, the employer can be fairly said to know of both the disability and desire for an accommodation.”
In a health care setting, a patient’s high-risk status likely is known. An effective Section 504/ADA Coordinator should provide training to teach personnel how to identify masking requests that trigger an obligation to consider a disability-based modification. That masking rules implicate the rights of people with disabilities is well-documented, particularly in light of recent controversies in Massachusetts and New York City.
The evaluation 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 health care because health care personnel often report to work when they are ill, a practice known as presenteeism. Moreover, health care settings are the very place patients go when they are sick. Without universal masking requirements, unmasked sick patients may infect health care personnel and other patients with COVID-19.
Practical Obstacles to Masking Compliance
A patient’s right to receive care from a masked health care provider faces practical obstacles. First, a patient may lack sufficient time to request a modification and have it implemented before a health care provider enters the patient’s exam room. Imagine a high-risk patient who arrives at their yearly ophthalmology appointment without knowing what the practice’s masking policy is. As the patient approaches the receptionist’s desk to check in, they notice that every staff member is unmasked. The patient discreetly asks the receptionist to inform both the tech who will measure the patient’s intraocular pressure and the doctor who will examine the patient’s optic nerve that they should wear masks.
A tech picks up the patient’s chart from the receptionist’s desk, and the receptionist conveys the masking request. The tech complies and is masked by the time they hover inches above the patient’s face to place numbing drops in their eyes. The tech then exits the room and moves on to another patient.
Like most medical practices, this office is busy and at times chaotic. Doctors and their staff move quickly, sometimes limiting appointments to five minutes or less. Neither the receptionist nor the tech have communicated to the doctor that the patient wants the doctor to mask. As a result, the doctor enters the exam room, sits on a stool, faces the patient, leans into the ophthalmoscope, directs the patient to do the same, and exhales directly into the patient’s face. The patient’s requested modification was unobjectionable, but no system ensured that it would be implemented.
Further, policies like Mass General’s, which at first explicitly and later implicitly discourage patients’ masking requests, create a conflict of interest by assigning the decision about whether a mask is legally necessary to the same person who decides whether they should wear one. Some doctors may refuse to mask because they believe that such a requirement violates their political beliefs, regardless of science. Others may simply believe that the “discomfort” of a mask is beneath them.
If patients persist in asking their doctors to mask after an initial refusal, care may be discontinued, on the grounds that the physician-patient relationship has broken down. A notice that care will be discontinued must be provided within a reasonable time so that a patient can transfer care without any treatment interruption. In practice, “reasonable time” often means 30 days. Given nationwide physician shortages, a 30-day notice is generally insufficient to transfer care seamlessly. Many offices will not schedule a new patient appointment without first receiving a referral or medical records, which also take time to obtain. A 2022 survey of physician offices in 15 major metropolitan areas found that the average wait time to see, for example, a cardiologist, was 26.6 days. The possibility of discontinuation of care becomes a threat intended to ensure patient obedience.
Best Practices
Health care facilities interested in ensuring that high-risk patients are treated by providers wearing masks could take the following steps. First, a facility might return to universal masking, ensuring that no patient must undertake the labor of negotiating masking with their doctor. Second, a facility could ask patients whether they want their health care providers to wear a mask on an intake form. The form would be returned to a receptionist who communicates the patient’s preference, using something as simple as a sticker affixed to the patient’s chart. A doctor who does not comply would be subject to whatever consequence the doctor would face for violating any other workplace rule.
Enforcing a health care provider’s duty to mask should not be left to patients. Masking is an inherently charged subject with the potential to create tension in the patient-physician relationship. That conflict may compromise quality of care or create or exacerbate a patient’s medical trauma. High-risk patients with disabilities have suffered enough.
