COVID-19: Legal Considerations for Social Workers Resuming In-Person Services

By Anne B. Camper, JD, General Counsel

© May 2020. National Association of Social Workers. All rights reserved.

In the early days of the Covid-19 public health emergency, many private clinical practices were closed or shifted to the delivery of clinical health care services via technology (virtual service). This was required or facilitated by emergency orders by many state and local governments. As these governments begin the process of reopening, many social workers are considering when and how to resume their own in-person service to clients. Common questions are addressed below from a legal perspective, to provide general guidance to social workers. Please be sure to review the companion article, Covid-19: Practice Guidelines for Reopening Social Work Practices, which focuses on issues such as Covid-19 infection prevention and control when providing in-person services..

In most instances, the regulatory changes made during the Covid-19 pandemic are temporary and intended to be in force only during the public health emergency period. As jurisdictions begin phased reopening, social workers should:

1. Be aware of their state and local reopening orders;
2. Determine whether any temporary orders in their state or others where they have been practicing or plan to practice – including orders affecting the delivery of clinical health care via technology, or practice by out-of-state providers – have been rescinded;
3. Adhere to any of their local governments’ directives regarding, e.g., social distancing, use of personal protective equipment (PPE), and other protective measures, which vary from state to state (and sometimes within a state); and
4. Develop and implement appropriate safety policies, in accordance with federal, state, and local regulations, and industry best practices.

Although states are beginning to reopen, many social workers are reluctant to return to their normal operations due to concerns about contracting or spreading Covid-19. The following FAQs relate to legal concerns social workers have raised about returning to in-person practice:

Frequently Asked Questions

Can I refuse to provide in-person sessions and continue to offer clinical health care service via technology work as the sole option, even if the state/local government has decided to reopen?

Generally, from a legal and ethics perspective, social workers can refuse to treat a client as long as the refusal is not discriminatory in nature, so a blanket refusal to provide in-person services should be permissible. However, as some states reopen, they may be rescinding their emergency orders regarding virtual health care services. It is important for social workers to make sure they are still permitted to practice virtually, by checking:

1. state and local reopening orders;
2. state licensing board of the social worker;
3. state licensing board where the client is located;
4. payor (commercial insurance/Medicaid/Medicare/Tricare/etc.); and
5. malpractice insurance/professional liability insurance coverage.

See Telemental Health: Legal Considerations for Social Workers for more information about these issues.

Will I be liable if a client develops Covid-19 after exposure at my office?

Typically, liability could arise if a client became ill as a direct result of the social worker’s negligence, e.g., the virus was contracted during the office visit, and this was caused by the social worker’s failure to take reasonable precautions to avoid the risk of contagion. Contagion may or may not be traceable to the office visit, but in any case, the best protection (from the virus and from a legal finding of negligence) is to follow any governmental reopening orders and adopt generally accepted sanitary and safety practices, and to document the protocols you are following.

Will my insurance cover potential liability for a client’s exposure at my office to Covid-19?

This will depend on the facts of the situation as well as the specific coverage and exclusions in your insurance policies, and how they are interpreted. A typical general liability policy should cover this occurrence, and professional malpractice policies might also apply – again, depending on the facts and circumstances, and how your coverage and exclusions are interpreted. Because aspects of Covid-19 coverage will be a novel issue , the insurance industry anticipates that in some cases the courts will have to determine its boundaries.

Should I require clients to sign an Informed Consent form prior to receiving in-person services?

Although not required in most jurisdictions, an Informed Consent form specifically developed to address the return to in-person services can be useful. NASW has developed a template, Informed Consent for In-Person Clinical Social Work Services During Covid-19 Pandemic, that you may customize for your own needs and preferences.  An Informed Consent form can serve several functions:

• Acknowledgement of disclosures that may be required for purposes of public health reporting and contact tracing (see Social Workers' Disclosure Responsibilities During the Pandemic). While this should already be covered by the HIPAA privacy forms signed when therapy begins, most clients haven’t considered how it might apply during the pandemic.
• Documentation of safety precautions undertaken by the social worker, and the client’s agreement to comply. The form can either list or refer to posted safety protocols that will be undertaken and expectations for client cooperation. It is imperative that the social worker follow through on any protocols promised or required, since failure to follow your own standards might be seen as evidence of negligence.
• Does not waive liability for Covid-19 risk. Generally, the law does not allow clients to waive a provider’s liability for this sort of risk. However, a detailed, documented discussion of risk and safety protocols should reduce the risk of lawsuit and help demonstrate that the social worker exercised reasonable care.

When resuming in-person service, may a social worker insist that clients take certain safety precautions, such as taking their temperature beforehand, wearing a mask, using hand sanitizer, maintaining six-foot distancing, or waiting in their cars or elsewhere until their session begins?

As noted above, a social worker can generally refuse to treat a client, provided the refusal is non-discriminatory. This means that a social worker may refuse in-person services to a client who does not comply with specified, reasonable precautions. You should avoid applying different requirements to individual clients, unless this is necessary in order to accommodate a documented disability. For instance, a general requirement that clients wear masks during in-person sessions may be waived in the case of a client whose health condition may be exacerbated by wearing a mask; in that case, it would be even more important that strict compliance with social distancing requirements be observed.

Does HIPAA allow social workers to share identifying information about clients with public health officials, for coronavirus tracking?

Yes, in certain circumstances. Please review Social Workers' Disclosure Responsibilities During the Pandemic, which addresses the issue of social workers’ disclosures during the pandemic under the HIPAA Privacy Rule, NASW’s Code of Ethics, and public health regulations.

Can a client refuse the virtual delivery of clinical health care services (via technology)?

Clients have the right to refuse or stop participation in clinical health care services, whether virtual or in-person,at any time. It is advisable, and required in some instances, that clients provide informed consent for the delivery of clinical health care services via technology (see English and Spanish Telemental Health Informed Consent Forms) before services are provided.

What should a social worker do if a client refuses the delivery of clinical health care services via technology, when the social worker is not offering in-person sessions?

If an existing client refuses the delivery of clinical health care services via technology when the provider is not offering in-person services, then the social worker should make an effort to assist the client in obtaining services by providing appropriate referrals to other practitioners, in order to ensure continuity of care and avoid abandonment. This is particularly important if the client is in crisis.  NASW members should review the Legal Issue of the Month, “Termination: Ending the Therapeutic Relationship - Avoiding Abandonment” (March 2015), for more information.

Do social workers have the right to work from home if they are uncomfortable reporting to their job, even if they are not sick?

This will depend on factors including the terms of the social worker’s employment contract or union collective bargaining agreement, if any, as well as any applicable provisions of the federal Occupational Safety and Health Act (OSHA) and any state equivalent, as well as the circumstances of the particular work. If an underlying disability places you at high risk for coronavirus, you may have the right to telework as an accommodation, depending on whether working from home is reasonable under the circumstances. See our discussion of Worker's Rights During Covid-19, and particularly the discussion of rights under OSHA and the Americans with Disabilities Act.

If social workers do not return to work out of fear of getting sick from the coronavirus, will they lose unemployment benefits?

Refusing to return to work due to concerns over contracting Covid-19 could be considered as a voluntarily resignation, making you ineligible for unemployment benefits. Also, refusal to return to work could result in termination for job abandonment. However, unemployment benefits are governed by state law, so the details may vary by jurisdiction. See our discussion of Unemployment Insurance and Covid-19.

Can social workers work from home to care for their children who are at home because of school or childcare closings?

The Families First Coronavirus Response Act (FFCRA) permits certain employees to take emergency sick leave to care for a child whose school or day care has closed, or where childcare is otherwise unavailable because of coronavirus protections. This may not be fully-paid leave. Please see our detailed discussion of Family Leave and Covid-19.

The information in this website is provided as a service to members of the National Association of Social Workers and the social work community for educational and information purposes only and does not constitute legal advice. We provide timely information, but we make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this website and its associated sites. Its transmission is not intended to and does not create a lawyer-client relationship between NASW, LDF, or the author(s), and you. You should not act based solely on the information provided in this website. Laws and court interpretations change frequently, and applicable state laws might not be addressed. Legal advice must be tailored to specific facts and circumstances. Nothing reported here should be used as a substitute for the advice of competent counsel licensed in your jurisdiction.