Top Risks and Liabilities for Dental Practices Operating During a Pandemic

As you know, the CDC already released its regulations and guidelines regarding businesses operating during the COVID-19 pandemic. Since guidelines come with grey areas, this is leaving business owners confused and cautiously reopening within the last few months.

Being a leading dental IT provider, we saw first-hand how our clients have navigated through this new standard way of business. After hearing concerns from both Medix-clients and non-clients, we spoke with a legal representative from Lane & Waterman LLP  to obtain a better understanding of the top risks and liabilities dental practices specifically have while operating during COVID-19.

Risk and liabilities: Policies, Procedure, and Waivers

Before COVID-19, countless dental practices did not have policies, procedures, and waivers in place regarding a pandemic. From an operational and legal standpoint, it’s recommended to write and document all your policies and procedures. This documentation is a great tool to have for you and your team to refer to as needed but be cautious of the constantly evolving science and official safety recommendations surrounding the novel coronavirus (or current pandemic). Rather than including the specific symptoms and recommendations in the official policy (which could lead to it quickly becoming outdated), we recommend referring to compliance with “current guidelines” for example. The most recent recommendations can then be communicated less formally to staff and clients without having to amend the formal policy. 

If you are considering having your employees and/or patients sign liability release waivers, you will want to consult with your attorney to ensure the language is suited to your specific circumstances. The enforceability of this type of liability waiver varies from State to State and some legal experts are questioning whether it will be enforceable at all in the context of a global pandemic. Until these waivers are challenged in court, we will not know the extent to which businesses may rely on them to avoid liability. Additionally, be aware that if enforceable, such a liability waiver is typically only effective as to the person who signs it. For example, a patient who is exposed to the coronavirus and develops COVID-19 in an outbreak traced back to a certain business may have effectively waived their right to recover damages but if that individual infects their spouse or neighbor, those individuals will not be bound by the patient’s waiver.

When it comes to implementing recommendations to combat the spread of COVID-19, dental practices also need to ensure they are complying with other employment and privacy laws. For example, one CDC recommendation is to take an employee’s temperature before they enter the building. However, recording and documenting a simple temperature qualifies as employee medical information which is required to be kept in a separate medical-only file for each employee. Rather than keeping an ongoing log of each employee’s temperature, a better practice would be to only record the temperature when an employee is sent home due to their temperature. This documentation will be useful as you work through the employee’s leave time.

Currently, dental practices do not have additional requirements or guidelines for managing a confirmed coronavirus case. If you suspect that an employee may have been infected refer to the CDC guidelines issued about the specific disease and contact your local county health department to ensure you are following what they advise for your specific area. Practices should plan and document this process as a quick reference guide.

Risk and liabilities: Employee Protection and Leave 

Let’s talk about PPE. Under OSHA guidelines and regulations, your practice is required to supply PPE for your team. The CDC recommends for dental employees to have surgical masks, eye protection, and a gown or protected clothing during procedures. Additional PPE like acrylic barriers, N95 masks, and 6-feet social distancing signage is recommended for other office employees. Click here to see the CDC issued guidelines and recommendations specifically for dental settings during COVID-19.

One of the top questions legal representatives are hearing is, “how do I handle employee leave/absence during this time?” This question could be regarding healthy employees or infected employees. This is a delicate and complicated area as many factors come into play, such as FMLA leave, extended FLMA (if an employee qualifies), regular paid time off, emergency paid sick leave act, etc.

First, it’s recommended to work with your employees as much as possible and make changes if needed. Here are a few changes you can make at your practice to keep a happy team:

• Issue any sick or vacation days they will earn this year early for them to use during the outbreak.
• Issue an additional vacation day(s) by canceling any “unnecessary costs”, such as your holiday party or end of year bonuses that might have reduced budgets this year anyway.  
• If possible, allow any employees to work from home.

If FMLA, extended FMLA, or the emergency paid sick leave act comes into play with your employee(s), it’s best to consult with your HR or legal representative to ensure you are properly handling those unique situations. It can be especially difficult to decipher when an employee qualifies for the newly implemented extended FMLA or emergency paid sick leave. Employers should be aware that mistakenly extending these benefits when an employee does not technically qualify may mean that the employer will not receive the offsetting tax credits for the paid leave. Additionally, the employer may find that the previous paid leave is considered “voluntary” because it was not required such that the employer remains legally obligated to offer the same paid leave again if the employee qualifies.

Risk and liabilities: Data Protection and Cybersecurity

Cyber-criminals are taking advantage of the coronavirus by sending phishing emails where they are posing as real organizations that are providing a critical COVID-19 update. Once a user clicks on a link, malware is instantly downloaded.

Here at Medix, we recommend that dental practices conduct cybersecurity training at least annually. However, this is an opportune time to review email security best practices with your employees. Below you will find flyers that you can disperse through email or hang around the office to remind your staff of these best practices.

• Email Security Best Practices
• Email Red Flags

For your communication to be effectively heard during a chaotic time, inform your patients of all the methods of communication you will be using during this time. Be as specific as possible, providing emails or numbers that you will be calling and/or texting from. This is a perfect time to briefly share the precautions you are taking within your practice to put them more at ease. 

Lastly, if you update your computers in-house vs. using an IT provider remember to update your computers even when your practice is shut down. This will ensure the most up-to-date security features are installed and protecting your office computers.

Risk and liabilities: Physical location and Sanitation 

The CDC posts its recommendations for cleaning and disinfecting community facilities. You can read more about COVID-19 specific recommendations here. As a business owner, you should document all your sanitation procedures. Documentation is a great source of reference should anything arise, and you need proof of your efforts. Having a designated employee for cleaning and posting visible cleaning assignments not only allows for a better workflow in your practice but will put any concerned patients at ease.

Being a dental IT company, we have been asked how to properly disinfect equipment and technology. You should always follow the manufacturer’s instructions for proper cleaning of their products. If the manufacturer does not provide instructions, we recommend carefully using alcohol-based wipes or sprays and thoroughly drying areas to avoid pools of liquid and potential damage. We also recommend wipeable covers for your equipment if they are available.

For dental practices operating during COVID-19 or any other future pandemic, it’s important to have a key-players to consult with throughout that time as there will always be grey areas and constant updates to guidelines issued. Unfortunately during this time, you also need to be aware of potential cyber risks and attacks since dental practices are a prime target for hackers as they are known to have old or weak IT security. As always, we are here as a resource for you. Please do not hesitate to reach out with any questions you may have.

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