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This Blog post it addresses the effects of Governor Newsom’s Executive Order on physical therapists, liability for employers, and what to expect next.

Governor Newsom’s Executive Order

On March 19, 2020, Governor Newsom issued Executive Order N-33-20 directing all residents immediately to stay at home, except as needed to maintain continuity of operations of essential critical infrastructure sectors and additional sectors critical to protect health and well-being of all Californians.

On March 22, the State Public Health Officer posted a list of “Essential Critical Infrastructure Workers.” Physical therapists are specifically listed under “Essential Workforce” in both clinical and hospital settings:

Health care providers and caregivers (e.g., physicians, dentists, psychologists, mid-level practitioners, nurses and assistants, infection control and quality assurance personnel, pharmacists, physical and occupational therapists and assistants, social workers, speech pathologists and diagnostic and therapeutic technicians and technologists).

The full list can be found here.

The Executive Order further states that “the healthcare delivery system shall prioritize services to serving those who are the sickest and shall prioritize resources, including personal protective equipment, for the providers providing direct care to them.”[1] Anyone convicted of willfully violating this Executive Order shall be guilty of a misdemeanor and a fine up to $1,000, imprisonment up to six months, or both.[2]

Which businesses must close?

Businesses that do not find themselves on the Essential Critical Infrastructure Workers list will need to abide by E.O. N-33-20. If possible, those workers can continue working from home.

Are PTs essential businesses?

As stated above, physical and occupational therapists are specifically listed as essential workforce in the Essential Critical Infrastructure Workers list. This means that PTs can continue treating patients in person as needed. However, certain precautions should be taken to minimize the spread of COVID-19 in your practice.

Physical therapists should determine, on a case-by-case basis, if the care being provided warrants an in-person encounter and whether such an encounter can be done in an environment that minimizes the potential risk of exposure to the COVID-19 virus. Consideration should be given to delay in-person encounters in such cases that a delay will not result in an adverse outcome. The underlying premise is to “do no harm.” Physical therapists and patients must determine if the risk of providing care outweighs the risks of not providing care at this time.

Physical therapists who continue practicing should also conduct proper screening procedures for staff and patients, practice social distancing, and maintain the highest sanitary levels possible.[3] Additionally, providers should consider moving to telehealth where appropriate.[4]

Does the Executive Order preempt county orders?

Unfortunately, E.O. N-33-20 is silent on the issue or preemption, which has created confusion regarding county orders, many of which were already in place.

On March 20, the Mayor’s Office of the City and County of San Francisco tweeted that it considered the orders complementary. Friday evening, the State updated the COVID-19 Stay at Home Order FAQ online website to say that stricter local regulations still apply “depending on the conditions in their area,” but not local regulations looser than state guidance. Seventeen hours later, on Saturday afternoon, the FAQ was amended to say only that “this is a statewide order,” with no guidance on the status of local regulations, stricter or otherwise. None of these amendments are shown by comparison, and no archive of earlier versions is made available. More is obviously to come on this critical issue.

Further complicating issues are the separate orders issued by individual cities. Most of these orders are from cities that lie outside the jurisdiction of the health departments of their respective counties, so conflicts at that level should be minimized, but there are some with overlapping jurisdiction. These orders may provide additional restrictions and specificity to the city or county they pertain to on top of those found in the Governor’s Executive Order. As of this writing, the cities of Berkeley, Beverly Hills, Long Beach, Palm Springs, Santa Monica, and several others all have their own orders on top of the state-wide Executive Order and county-wide orders.[5] These various orders are being created or changed all the time, so it is important to continue checking with your city and county to see how their orders compare to E.O. N-33-20.

What to Expect Next

It is important to keep in mind that the COVID-19 epidemic is a global phenomenon that is changing every day. Physical therapists are advised to keep checking in with State, Federal, and local agencies to keep up to date on the requirements of employers to ensure continued compliance. For further assistance, please contact Simas & Associates, Ltd. at 888.999.0008 or info@simasgovlaw.com.

 

[1] https://covid19.ca.gov/img/Executive-Order-N-33-20.pdf.

[2] Government Code § 8665.

[3] OSHA Guidance on Preparing Workplaces for COVID-19, https://www.osha.gov/Publications/OSHA3990.pdf (accessed April 6, 2020).

[4] American Physical Therapy Association – Telehealth in Physical Therapy in Light of COVID-19, http://www.apta.org/PTinMotion/News/2020/3/16/TelehealthCOVID19/ (accessed April 6, 2020).

[5] https://www.cityofberkeley.info/uploadedFiles/Health_Human_Services/Level_3_-_Public_Health/city-of-berkeley-health-officer-order-to-shelter-in-place.pdf; http://www.beverlyhills.org/citymanager/newsroom/beverlyhillsdeclareslocalemergencycityhallclosedtothepublic/web.jsp; http://www.longbeach.gov/globalassets/health/media-library/documents/diseases-and-condition/information-on/novel-coronavirus/lb-health-order—safer-at-home—3-20-20; https://www.palmspringsca.gov/home/showdocument?id=72613; https://www.santamonica.gov/press/2020/03/16/city-of-santa-monica-issues-emergency-order-for-temporary-business-closures-to-the-public-the-slow-the-spread-of-novel-coronavirus-covid-19.