By Patrick O'Brien, JD, legal coordinator, American Med Spa Association

In our ongoing fight against COVID-19, masks have emerged as our best weapon to stem the spread. COVID-19 appears to have a high incidence of asymptomatic yet infectious cases, and the virus can freely travel in the air in respiratory droplets. As guidance from the U.S. Centers for Disease Control and Prevention (CDC) indicates, while masks can protect you from contracting the disease, their primary benefit is protecting everyone else from you. However, the CDC only offers information—it is not an enforcement agency and, by itself, cannot require the adoption of any of its guidance.

To improve adoption of masks, many jurisdictions have instituted mask orders. Currently, 34 states have some form of general mask or face covering mandate. Typically, these orders require that anyone out in public or in a business wear a mask at all times. In this post, we will look at what these orders mean for medical spas.

Do These Laws Apply to Medical Spas?

The short answer is yes. Earlier this year, many states prohibited elective medical procedures in addition to mandating the closure of "non-essential" businesses (see here). By August, elective procedures were once again allowed in most office settings with some locations maintaining restrictions in hospitals. Additionally, most of the "non-essential" closure orders have either been lifted or amended to allow limited operations.

Throughout these orders, "health care services" were usually exempt as an essential service, and, thus, so were medical spas. However, the current mask orders do not discriminate regarding types of business—most of them require a mask for both employees and customers. For example, in Texas, the order applies to every person when inside a commercial entity or space open to the public. The order does contain a limited number of exemptions, one of which may apply to medical spas: It allows a person to temporarily remove their mask to receive "personal care services." However, the Texas Medical Board went a step further and adopted Minimum Standards of Safe Practice, which require the use of masks by both the patient and the provider at all times, with no provision for removal. Similarly, both New York and California require masks when social distancing is not possible.

Since every state uses slightly different terminology in these orders, it is important from a business perspective to understand what exactly they require. While such an order may seem to require masks at all times, that may not necessarily be the case.

Are There Exceptions?

In a medical spa setting, where the majority of procedures focus on the face, it is going to be challenging to attempt to provide medical services with half of the patient's face covered. So, are there any exceptions to wearing masks that might make it easier to perform aesthetic procedures? As is the case with the restrictions, the specific exceptions will depend on the state.

The general shape of these restrictions is similar to how California addresses it. In the California Department of Public Health's guidance, it is clear that, to the extent possible, the patient should wear a mask when receiving health care, dental or similar services. However, in a footnote, the department does allow the patient to temporarily remove the mask when directed by a health care provider or employee. Likewise, California's COVID-19 resource page suggests that patients are allowed to remove the mask when receiving a service to the nose or face.

While this may seem like a common-sense accommodation, it isn't always spelled out in plain language or in an obvious place. Take the language in the Texas Medical Board's Minimum Standards of Safe Practice above. It has no exemptions for removing masks, and even requires heightened PPE for practitioners in certain cases. However, the Texas Medical Board does provide some guidance in its FAQ as to the minimum standards that allow the patient to remove their mask if needed for treatment or a procedure, but reiterate that the physician must wear their PPE at all times.

Conclusions

The Texas and California rules reflect the general standard in many other states. Health care professionals should wear appropriate PPE at all times and attempt to maintain social distancing as much as possible; the patient, in turn, should keep their mask on as much as possible and only remove it for as long as is needed. While this procedure is easy to follow, it is still important to review your specific state's language to see if it necessitates any heightened requirements or other considerations.

As a business owner or health care professional, it is important to follow the orders and requirements that apply to your situation. Although the CDC typically sets the tone of guidance, it is important to check with state health departments, medical boards and orders to learn the rules that will actually be enforced against you.

Even if your state does not have a general mandate for wearing a mask, employers have a duty to provide appropriate PPE to their employees through OSHA. (See this recent post from Christie Hutchinson for more information.) Additionally, medical spas have a professional duty as medical practices to provide services according to the accepted standard of care. While it is seldom spelled out, the "standard of care" is a flexible marker. It changes as the practice of medicine develops (we no longer use leeches and bloodletting, for example) and is certainly different during a pandemic of a highly infectious airborne virus.

Finally, the court of public opinion can be far harsher than state-imposed fines. The public and your patients need to believe that you are taking their protection seriously. If a patient sees something that makes them uncomfortable, they may not say anything, but they will keep it in mind when deciding whether or not to return; you can also count on them telling their friends. On the other end, you have local news and social media, which are hungry for articles and posts about restaurants that don't social distance and businesses that ignore mask ordinances. The bad publicity and reputation a business can get for being "unsafe" or "risky" can really harm their future.

The good news is that taking precautions is entirely within your control. (AmSpa offers a number of resources and webinars to help with this.) Medical spas need to adopt policies and procedures to protect their patients and employees and limit the risks of COVID-19 as much as possible, even if they are not ordered to do so.