James “JJ” Maskowitz

Over the course of 2020, it became apparent that long-term care facilities needed to be thoroughly prepared for unexpected health or safety issues. Facilities around the nation learned that it is vital to develop, implement and frequently update their policies and procedures to navigate future emergencies.

Looking ahead, attention to these updates will prove vital to opposing claims from the Plaintiff’s bar as long-term care facilities are now faced with combating the effects of the Delta variant that has gripped the nation.

This preparation will prove especially helpful considering that 30 states have now enacted broad protection from COVID-19 liability lawsuits. These laws protect most or all businesses (including long-term care facilities) from lawsuits seeking to assign blame for an individual being exposed to COVID-19 unless the person bringing the suit can prove gross negligence, willful misconduct or failure to follow public health orders, depending on the standard specified in each state’s law. 

Minimizing risk and liability 

Clear, open and frequent communication with the resident and responsible parties can continue to minimize the extent of any discontent or disputes relating to resident care (or COVID-19) and provide an easier path to resolution than when a resident and/or responsible party is kept in the dark. Staff should document and preserve complete resident records, including all communication to and from families and physicians. 

New state and federal regulations should be immediately implemented, and staff should be educated as to how the facility is abiding by the same. Keeping detailed records regarding how the facility is abiding by Centers for Disease Control and Prevention (CDC) and other guidelines for sanitation, temperature checks, and all other COVID-19 screening precautions will also help show the facility was acting in accordance with (or beyond) the general standard of care and further provide evidence that the facility is following public health orders related specifically to the Delta variant and not engaging in gross negligence or willful misconduct. 

Legal considerations of requiring vaccines 

More states and employers have started requiring long-term care facility staff to be vaccinated in recent weeks — specifically due to the latest surge in infections due to the Delta variant. While there is no specific federal law addressing this particular issue, recent guidance from the U.S. Equal Employment Opportunity Commission (EEOC) advised that employers have the legal right to make such a requirement of their employees. 

Private employers are generally permitted to require employees to get vaccinated against COVID-19, and private businesses can permit entry and service only to vaccinated individuals so long as they abide by federal laws that prohibit discrimination on the basis of religion and disability. This particular issue is in constant flux as many states are currently considering, or have already enacted, legislation that prohibits businesses from mandating vaccinations or requiring proof of vaccination status for visitors or patrons. 

Also of particular note, President Biden announced on Aug. 18, 2021, that his administration will require that nursing home staff be vaccinated against COVID-19 as a condition for those facilities to continue receiving federal Medicare and Medicaid funding. This mandate, likely to come in the form of a regulation issued by the Centers for Medicare & Medicaid Services, could take effect as soon as this month.

At this juncture, it is important for long-term care operators to take the applicable state laws and the impending Biden mandate into account when deciding whether to require employees to vaccinate. For operators who choose to allow employees to make an individual choice as to whether they will get vaccinated, it will remain important to document and be able to point to educational and other incentive measures that were provided to employees to encourage them to be vaccinated. 

Protecting yourself from COVID-19 litigation

These efforts are critical to showing the operator was taking measures to get staff fully vaccinated and help combat against claims that the operator was acting with willful disregard or recklessness with regard to potential claims from the Plaintiff’s bar that failure to require a vaccine led to the spread of the Delta variant in a particular facility. 

It’s also critical to continue to have a proactive litigation strategy that includes a comprehensive risk mitigation plan centered on regularly updated policies and procedures, an ability to demonstrate that employees were trained and followed those policies and procedures, proper documentation for continued infection-control measures, and updated documentation as to encouragement, education and incentives to have staff vaccinated.

Periodic internal audits can also help reveal possible gaps in staff training or the staff’s understanding of expectations. Likewise, feedback and criticism from residents and their family members should be taken seriously, as they often present key areas for improvement. Finally, a good bedside manner and frequent communication with family members can help reduce litigation risk because it keeps them informed of all the measures the facility is taking to prevent illness, which in turn will make them more confident the facility is doing everything possible to keep their loved ones safe from harm.

James “JJ” Maskowitz is a partner in the Tampa, Florida, office of Hall Booth Smith, P.C. He defends physicians, hospitals, long-term care and aging facilities, insurers and other health care providers in a wide range of medical malpractice, liability and other litigation. He can be reached at [email protected]

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.