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The COVID-19 pandemic has forced many employers, including health care employers, across the United States to adapt to a remote environment. Providers have had to change the way in which they deliver health care and embrace telehealth (or telemedicine). While telehealth is not a novel concept, the transition from providing in-person services to telehealth services has been slow due, in part, to complex regulations governing telepractice. Now, as a result of the COVID-19 pandemic, public health agencies and state governments have issued guidance and passed laws affording additional flexibility with respect to the provision of telehealth services, and are urging health care providers to provide such services in appropriate situations to “slow the spread,” preserve personal protective equipment, and minimize patient demand at health care facilities. Consequently, providers are increasingly relying on telehealth to care for their patients or clients.

This Employment Note provides a general overview of certain employment-related considerations for health care providers providing telehealth or telemedicine services and operating remote workforces during the COVID-19 pandemic.

Applicable Laws Affecting a Remote Workforce

Although employees may be working remotely, that does not mean that federal, state, and local laws that pertain to in-person workforces no longer apply. To the contrary, it is imperative that health care employers remain mindful of the employment laws that apply to their employees, notwithstanding that such employees are working remotely. Generally, employees are subject to the law of the state and locality in which they work, which, in the case of telework, is the law of the state and locality in which they reside. Therefore, in determining which employment laws apply to their remote employees, health care employers should consider where their remote employees reside. Such laws include, without limitation, wage and hour laws, leave laws, state-mandated benefit laws, anti-discrimination and anti-harassment laws, and laws mandating the distribution of certain information and notices to employees.

Additionally, the applicability of employment laws may depend on the number of employees and possibly their location. For example, job-protected leave under the federal Family and Medical Leave Act applies to employers with 50 or more employees working within a 75-mile radius.

Compliance with Employer Policies

On a similar note, health care employers should remind employees that, when performing remote work, employees are still expected to comply with all work-related policies, which remain in effect, and that the failure to do so may result in discipline, including, without limitation, termination of employment. In reminding employees, health care employers should emphasize policies concerning anti-discrimination, anti-harassment, and anti-retaliation; complaint procedures; electronic resources and communications systems; protection of confidential information and protected health information (PHI); timekeeping; and workplace safety and injury reporting.

Further, health care employers may consider implementing a remote work arrangement policy, or specifically, a telehealth or telemedicine policy, to set forth the terms and conditions of remote work as well as their expectations for employees providing remote services.

Enforceability of Restrictive Covenants

Another employment-related consideration for employers or providers that engage healthcare workers providing telehealth or telemedicine services is the enforceability of restrictive covenants.

For example, under Medicare rules, telemedicine is considered to be provided both at the patient’s location as well as what is termed the “distant site,” which is where the physician is located. Therefore, if a practitioner is restricted from providing telemedicine from a specified radius that is measured from their home, they will always be in violation of the prohibition, regardless of where the services are delivered.

Some commentators have opined that existing non-compete law is inadequate to deal with the possible application of a limitless geographic scope of restriction, based upon contract language that applies practice prohibitions from the point of delivery of the services.

In its Opinion 11.2.3.1, the AMA has stated that physicians should not enter into covenants that unreasonably restrict the right to practice. We expect that it would support pushback for telemedicine restrictive covenants as unreasonable.

Because this issue has only arisen recently, in the context of the rapid expansion of telemedicine services, there is no judicial guidance on the outcome of possible challenges to such a provision.

We caution employers to be mindful of both the likelihood that unless modified for telemedicine, particularly as to the geographic scope, their existing contracts may be insufficient to protect their interests AND the possibility that provisions restricting telemedicine services could be struck down or severely limited.

Informed Consent

Health care employers should develop policies and procedures and properly train employees to obtain informed consent prior to providing telehealth or telemedicine services. Patients and clients should be informed of the risks and benefits of telepractice, including the use of telepractice technologies. For example, employees should ensure that patients and clients are able to adequately participate and understand the appropriate uses of such technologies.

The New York State Education Department Office of the Professions (“Office of the Professions”) has established a COVID-19 webpage, which, among other things, offers general and profession-specific telepractice guidance, including, with respect to informed consent.

Licensure

Under New York State law, full licensure and current registration of any professional practicing in the State is required, unless specifically suspended or waived pursuant to an Executive Order issued by the Governor during a disaster emergency. Due to COVID-19, New York State Governor Andrew Cuomo suspended or waived certain licensure and registration requirements to allow certain professionals to practice in New York State and assist in the COVID-19 response efforts without penalty. However, all other New York State licensed professionals are required to be currently licensed or registered in order to practice. Thus, health care employers should ensure that those providing telehealth or telemedicine services are currently licensed or registered in accordance with the law. This includes being familiar with the applicable telepractice laws of all jurisdictions in which they will be providing telehealth or telemedicine services. For up-to-date information as to New York State licensure requirements, check out this guidance issued by the Office of the Professions.

HIPAA and Privacy Concerns

The Office for Civil Rights (OCR) at the Department of Health and Human Services (HHS) is responsible for enforcing certain regulations under the Health Insurance Portability and Accountability Act (HIPAA). Recently, the OCR issued a Notification of Enforcement Discretion in response to COVID-19. The Notice provides that the OCR will exercise its enforcement discretion to temporarily afford health care providers with greater latitude to communicate with patients, and provide telehealth services, through remote communications technologies, even if some of the technologies, and the way in which they are used, do not fully comply with HIPAA. Specifically, the OCR will not impose penalties against health care providers for violations of the HIPAA Privacy, Security, and Breach Notification Rules (HIPAA Rules) in connection with the good faith provision of telehealth services using certain audio or video communication products during the COVID-19 nationwide public health emergency. The OCR’s exercise of discretion applies to telehealth provided for any reason, whether or not the telehealth service is related to the diagnosis and treatment of health conditions related to COVID-19.

A covered health care provider that wants to use audio or video communication technology to provide telehealth services to patients can use any non-public facing remote communication product (i.e., a product that, as a default, allows only the intended parties to participate in the communication) that is available to communicate with patients during the emergency. Under the Notice, acceptable remote communication products include Apple FaceTime, Facebook Messenger video chat, Google Hangouts video, Zoom, and Skype, whereas unacceptable products include Facebook Live, Twitch, TikTok, and other similar video communication applications that are public facing.

Currently, the Notice does not have an expiration date. The OCR previously stated that it will issue a notice to the public when it is no longer exercising its enforcement discretion based upon the latest facts and circumstances. Health care employers are reminded that the Notice does not affect the application of HIPAA Rules to other areas of health care during the emergency.

Medical Malpractice Coverage

Lastly, health care employers should carefully review the terms and conditions of their medical malpractice insurance policies so as to ensure proper coverage for telehealth or telemedicine services and any other services that are normally outside of their regular practices.

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As the situation is constantly evolving, health care employers should carefully and regularly monitor information being released about the provision of health care services, including telehealth and telemedicine services, during the pandemic, and consult employment counsel regarding workplace legal issues associated with COVID-19.

For more information on the topic discussed, contact:

• Jason B. Klimpl  |  klimpl@thsh.com  |  212-508-7529