Asking for Safer Precautions

Many people are seeking to have safe conditions to protect themselves from infection by COVID and its long COVID consequences. Risks are present in many different places from seeking healthcare settings to everyday workplaces. Here we provide a framework for requesting safer conditions through precautions especially in the context of high risk circumstances such as healthcare settings when going to an appointment for medical care. We address both general approaches, and steps to be taken for accommodations under the Americans with Disability Act (ADA). 

While there is no formula for what should be done, there are two primary strategies. The first strategy starts with requests that avoid appeal to legal means and avoids legal terminology. The second strategy uses language that rests on legal frameworks or threats. Starting with the second strategy generally precludes the first one, while pursuing the first strategy generally allows the second strategy to be followed later if the first step does not esn’t work. It may be more advantageous to begin with the first strategy, as it can help prevent the ir guard of the recipient from going up and avoid the need for involving the recipient’sir lawyer, particularly since you may need to have your own lawyer. We will provide a strategic framework in this sequence.

The Request Courteous:

While some organizations and individuals are resistant to helping with safety protections, others may be helpful either due to an adequate appreciation of the risks, or due to respecting the wishes of those making a request. Based on this perspective, a general recommendation is to approach the beginning of a request by presenting a clear discussion of a set of options that you would like to see implemented, acknowledging that some of them may not be possible.

Here are the steps that we suggest for contacting an office for a specific service such as a medical provider:

1. Contact your provider or a potential provider and ask what are their current precautions against COVID-19 infection.
2. Ask if they would be willing to do additional things so you can be safer (based upon what they are already doing).
   1. If they say yes: Ask to set up a call to formulate a specific safety plan.
   2. If they say no:
      1. Shift to a formal ADA request, or
      2. Look for a different provider who will accommodate your needs.
   3. If they ask what kind of requests you have, give them an example that is one of the basic things you would like (see point 4 below), and say you would like to discuss the possibilities more generally, and ask if there is someone who can help with these requests that you should talk to.
3. At the opportunity to have a more complete conversation, let them know that there are a few things that you would like, and since you don’t know what is possible for them, you would like to go through your list and explore what is workable. 
4. Go through the list. Note: Decide on your own list. The main thing is to ask for things that are relevant to your circumstances and will help prevent infections. 
5. Making a list:
   1. We categorize the list in terms of the 5 pillars of protection: Respirator masks, Ventilation and HEPA filtration, Testing, Distancing, Vaccination.
   2. Here are general guidelines:
      1. Masks: Ask that everyone that you might be in contact with to wear N95 respirator masks or elastomeric masks (but avoid models that don’t have source control — i.e. only protect the wearer and not you). These masks should be worn before you come into a space as the viral particles stay in the air. We recommend that you will be wearing an N95 mask if the procedure allows it or higher levels of protection in N99, N100, elastomeric masks or PAPRs. PAPRs are often comfortable to wear due to improved air flow but may need an extra mask to protect safety of others (for example, 3M PAPRs don’t have source control so need an extra mask inside them to protect others, in contrast the Microclimate PAPR does protect both wearer and others) .
      2. Ventilation and HEPA filtration: Ask for as much ventilation (open windows or increased HVAC ventilation) and portable HEPA air filters as possible in the room you will be in. We also recommend asking if you can bring a portable battery powered HEPA air purifier to hold in your hand, or a plug in HEPA purifier to aim at your face, especially if you are not able to wear a mask during your procedure.  
      3. Testing: Ask for anyone that will be in the same space with you to PCR/LAMP test just before you see them, and even better to test regularly in the days before, and just prior to the appointment. Rapid antigen tests are of some but limited help because they currently have a high false negative rate.
      4. Distancing: Ask for mobile check-in/wait in your car instead of the waiting room. Ask for before hours or first appointments, or appointments at a time when others are not present in the facility. Ask to use a less-trafficked entrance/exit that might typically be for staff only. Ask if there is a separate part of the facility, or rooms that are isolated from others. Ask if the appointment, or part of the appointment, can be held outdoors at the facility or near (or in) your home. There are multiple opportunities for provider services that can be done at your home including blood drawing for tests. 
      5. Vaccination: It is generally accepted that providers are vaccinated and some feel that is enough to provide protection even though it is not because it doesn’t prevent being infected and infecting others. It is, however, one layer of protection that can be asked if it is present. 
6. General notes:
   1. The use of the term “accomodations” has been avoided in this first approach, consistent with avoiding legal terminology. Those who feel it should be used can do so or use it in the following approach.  
   2. References to N95 masks may be expanded to include other respirator masks such as KN95, FFP2, and KF94 masks. Due to the generally better fit with N95 respirators they are preferred over the other standards. However, any respirator mask is much preferred over a surgical mask. Organizations that do fit testing should have their workers use the masks that pass the test.
7. Notes about costs:
   1. Difficulty of implementation and costs are major factors in organizations rejecting special requests for safety precautions. This is recognized under the ADA, which specifies that accommodation requests may be rejected based upon “undue burden” defined as “requiring significant difficulty or expense.” With, and certainly without, the ADA, the main way to receive special requests is through negotiations that may include discussion of the associated costs. Thus, it is stated that “… the individual with a disability should be given the option of paying [any] portion of the cost which would constitute an undue hardship or providing the accommodation.” [See https://adata.org/faq/what-considered-undue-hardship-reasonable-accommodation]
   2. Some safety precautions, such as using N95 respirator masks, or bringing your own portable HEPA purifier, require low or no extra expenses and therefore should not involve cost discussions. Other precautions  in some circumstances may have high enough costs for the organization or individual providing the accommodation that cost discussions may be part of the negotiation.
   3. The organization size is a factor in claims of undue burden. Larger organizations with substantial resources have a greater difficulty justifying undue burden claims, as they are expected to make accommodations requiring greater effort or expense. Thus, additional costs are more likely, especially if they are not covered by insurance, if the organization is small. 
   4. It is reasonable, as a strategy, either to request special accommodations and not to offer to cover expenses, and see if the organization requests costs be covered, or to offer to cover some or all of the costs up front to achieve a more positive initial response. Even if you do notn’t offer, the organization may offer to perform the requested protections with the condition of covering additional costs, claiming that otherwise they will face undue burden. 
   5. As an alternative to offering to cover additional costs, consider asking what the costs for these protections are and if they will be covered by the organization or insurance or if you need to pay for any of them. Additionally, ask what other kinds of assistance they can provide if the costs are too high. (This could include covering a portion of the cost). 
   6. N95 respirator masks are not expensive relative to the usual appointment costs. In some cases providing, bringing with you, buying, or covering the direct costs of extra portable HEPA purifiers and tests may be needed. The difficulty of implementation may also be overcome if you cover requested extra administrative costs, for example, for providing a service outside of the normal times of operation. 

What should I do if the answer to my request is not agreed to? What should I do if there is opposition to any of my requests ?

1. If they are able to accommodate some but not all requests, then consider if they are doing enough to reduce risk. 
2. Formally request ADA accommodations (see below).
3. Contact other providers, ask their current protocols and if they’re willing to work with you.

The Request Direct:

The following letters frame the request in terms of the ADA. This approach leverages the legal frameworks available for requesting accommodations and could lead them to put their response into the hands of their lawyer which creates a formal response process. 

Who can use an accommodation request based upon a disability? Those who have conditions that limit a major life activity are covered by the ADA. Those who have an elevated risk due to a medical condition and therefore take precautions to prevent harm may be covered under the ADA. People who have family members who are vulnerable are also limited from daily activities by the need to take necessary precautions and might be covered under the ADA. Under the legal framework of “quia timet” injunctions, the threat of injury from future infection, even without current conditions that lead to special risks, may also be a context for legal protection from probable future harm. 

The following draft letters are written with particular requests, however, the more general list of accommodations given in the previous section may be used to create your own list. 

Requesting Safe Medical Care for Vulnerable Individuals 

VERSION 1 (Long version): 

Re: Request for Reasonable Accommodations under the Americans with Disabilities Act (ADA) for Subsequent Medical Care

Dear [Healthcare Provider’s Name], 

I am writing to formally request reasonable accommodations under the Americans with Disabilities Act (ADA) to ensure my safe access to healthcare services at your facility for all my subsequent medical care. I suffer from a medical condition which puts me at an increased risk of experiencing severe complications and long-term effects from COVID-19 and makes me a person with a disability in terms of the ADA.

The ADA, a federal law, requires covered entities to provide reasonable accommodations to individuals with disabilities. As a person with a disability, I am entitled to such accommodations to help ensure my safety and access to healthcare services. To mitigate the risk of COVID-19 exposure and infection, I kindly request that 

(1) healthcare workers attending to my needs wear N95 respirator masks during any interaction or procedure in all my future visits.

(2) …

Please confirm receipt of this request, and your ability to meet the requested reasonable accommodations within 5 business days. Your prompt attention to this matter is greatly appreciated. If you have any questions or require additional information, please do not hesitate to contact me at [Your Phone Number] or [Your Email Address].

By acknowledging and accommodating my request, you will not only ensure my safe access to healthcare services but also demonstrate your commitment to ADA compliance. I trust that you will consider my request in good faith and take the necessary steps to ensure that your healthcare facility is in compliance with the ADA.

Thank you for your attention to this important matter. Sincerely, [Your Name]

VERSION 2 (Short version):

Re: Request for Safety in Medical Care

Dear [Healthcare Provider’s Name], 

I kindly request that healthcare workers attending to my needs 

1. wear N95 respirator masks during any interaction or procedure in all my future visits. 
2. …

This is essential to provide me with the safety I need due to my vulnerability to COVID infection and their risk of bad outcomes.

Please confirm receipt of this request, and your ability to meet the request within 5 business days. Your prompt attention to this matter is greatly appreciated. If you have any questions or require additional information, please do not hesitate to contact me at [Your Phone Number] or [Your Email Address].

Thank you for your attention to this important matter. Sincerely, [Your Name]

Notes: 

• In such a letter it is possible but should not be necessary to provide specific information about medical conditions, or their extent. The US Department of Justice guidelines also recognize protections against unnecessary inquiries into the nature of disability.
• Use of the word “accommodation,” or the word “disability” is generally considered to be unnecessary under the ADA. The ADA need not be mentioned by name as part of the request.
• As the person with a disability, you have the right to ask for any reasonable request if you think it is needed to accommodate your disability. If you ask for something, then they have to respond to it. 
• If they say no, they have to justify it based upon undue burden. You have the right to ask for an alternative accommodation if they find something you ask to be an undue burden. 
• Following CDC recommendations is not a reason to deny an accommodation request. If the provider refers to such guidelines, reiterate the ADA standard of undue burden and remind the provider that if they’re denying the request, they need to specify why they’re considering it an undue burden.
• There is no specific list of accommodations that you are limited to asking for.
• They have to justify their response if they say no.

Here are a couple of additions that might be considered:

(A) As a patient, I have made my best efforts to protect myself by adhering to health guidelines, including wearing a N95 respirator or better and maintaining social distance. Healthcare providers are bound by professional and ethical obligations should make reasonable efforts to provide a safe environment for their patients.

(B) If, despite my best efforts to protect myself, I contract an infection within 14 days after unmitigated exposure at your facility, it is reasonable to presume that transmission occurred within the healthcare facility. In such a case, I reserve the right to hold you, your colleagues, and your employer liable for any civil damages resulting from this negligence.

(C) For Mass General / Brigham Hospitals these addresses are relevant:

Dear Office of Patient Advocacy [Office of Patient Advocacy <MGHPatientAdvocacy@partners.org>], 

Dear Mr. Belknap, [John Belknap, Chief Compliance Officer, Partners <jbelknap@partners.org>],

Dear Mr. Hosseini, [Zamir Hosseini, Disability Program <zamirhosseini@partners.org>], 

Dear General Council Peabody, [General Council <Laura Peabody Lpeabody@partners.org>],