Section 1 sets forth the general rule that businesses may not require patrons or employees to wear facial coverings, but exempts health care providers, practitioners, and facilities from this prohibition. Rather than imposing the blanket prohibition on requiring facial coverings applicable to businesses, Section 5 sets up the following system for the use of facial coverings in health care settings:
- The Agency for Health Care Administration (AHCA) and the Department of Health (DOH) are required to jointly develop standards for the appropriate use of facial coverings for infection control in health care settings by July 1, 2023.
- AHCA and DOH shall adopt emergency rules for these standards.
- AHCA and DOH shall publish these standards on their respective websites and provide a link for reporting violations.
AHCA and DOH have complied with these requirements.
- By Aug. 1, 2023, health care practitioners and health care providers are required to establish facial covering policies and procedures IF they require any individual to wear a facial covering for any reason.
- Such policies and procedures must comply with the emergency rules adopted by AHCA and DOH as applicable.
- These policies and procedures must be accessible from the home page of the practitioner or provider’s website or must be conspicuously displayed in the lobby of the health care service setting.
- Health care providers and practitioners may not require any person to wear a facial covering unless the requirement complies with AHCA/DOH rules and the provider/practitioner’s own policies and procedures.
- Violation of this section may result in administrative disciplinary action.
As noted above, both AHCA and DOH have adopted emergency rules on the Standards for the Appropriate Use of Facial Covering for Infection Control. DOH rule 64DER23-6 differentiates between patients, visitors, and employees as to the rules applicable for facial covering requirements.
- Health care providers/practitioners may require patients to wear a facial covering only when the patient is in a common area and is exhibiting signs or symptoms of an infectious disease that can be spread through droplet or airborne transmission or has been diagnosed with such a disease.
- If patients are required to wear a facial covering under the circumstances above, there must be a provision in the health care provider/practitioner’s policy allowing the patient to opt out of wearing the facial covering.
Visitors to the health care provider/practitioner may be required to wear a facial covering only when the visitor is:
- Exhibiting signs or symptoms or has a diagnosed infectious disease that can be spread through droplet or airborne transmission.
- In sterile areas or an area where sterile procedures are being performed.
- In an in-patient or clinical room with a patient who is exhibiting signs or symptoms of or has a diagnosed infectious disease that can be spread through droplet or airborne transmission.
- Visiting a patient with a confirmed condition of the immune system that increases the risk of transmission of an infection from asymptomatic visitors when the patient’s treating physician determines the use of facial coverings are necessary for the patient’s safety.
- Visitors must be allowed to opt out of wearing a facial covering “if an alternative method of infection control or infectious disease prevention is available.”
For employees there are no set criteria for when a facial covering can be required. Presumably, health care providers/practitioners may require employees to wear facial coverings in any setting at any time. If facial coverings are required, employees must be allowed to opt out unless the employee is:
- Conducting sterile procedures.
- Working in a sterile area.
- Working with a patient with a confirmed condition of the immune system that increases the risk of transmission of an infection from asymptomatic employees when the patient’s treating physician determines the use of facial coverings are necessary for the patient’s safety.
- Working with a patient on droplet or airborne isolation.
- Engaging in non-clinical potentially hazardous activities that require facial coverings to prevent physical injury or harm in accordance with industry standards (OSHA, for example).
The opt-out provisions in the rule are a bit vague for patients and visitors. In comparison, the standards for employees are quite clear.
For patients, the opt-out policy must be in accordance with Florida’s Patient Bill of Rights and Responsibilities.3 The DOH rule, however, does not provide any guidance on how, or which specific provision of the Patient Bill or Rights the policy must conform to. The Patient Bill of Rights does not contain any provision that specifically mentions the wearing of facial coverings, and a full reading of the statute fails to reveal any provision that would clearly apply to the use of facial coverings. The FMA will ask DOH for clarification and will share any information we receive.
For visitors, the opt-out requirements allow health care providers/practitioners to insist on the wearing of facial coverings if an alternative method of infection control or disease prevention is not available. As DOH does not define or list the acceptable alternative methods of infection control or disease prevention, that determination is up to the health care provider/practitioner.
The emergency rule adopted by AHCA (59 AER23-2, Standards for the Appropriate Use of Facial Coverings for Infection Control) is identical to the DOH rule.
3 Section 381.026, Florida Statutes (2022).