Navigating the gray line between an essential and nonessential workers amid the coronavirus pandemic is difficult, lawyers told the Daily Business Review in interviews Monday. Hospitals and health care businesses must understand the services that hybrid employees are allowed to provide. Otherwise, they expose themselves to liability if a health care practitioner becomes infected with the coronavirus.

Florida Gov. Ron DeSantis issued an executive order that prohibits hospitals, ambulatory surgical centers, dental, orthodontic and endodontic offices, and other health care practitioners in Florida from providing medically unnecessary or nonurgent procedures and surgeries that if delayed, would not place the patient at risk.

While there are essential and nonessential health care practitioners, DeSantis' executive order must be evaluated to determine how it applies to a hybrid employee, according to Jack Lord Jr., a partner and litigation lawyer with Foley & Lardner. Since the country is in the midst of a pandemic, hospitals must stay open. If a business only provides Botox injections, it is clearly a provider of nonessential services. In the middle falls companies with employees that provide both essential and nonessential services.

John "Jack" Lord Jr, partner at Foley & Lardner in Miami.

"You can imagine there are certain optometry procedures that are nonessential. You don't need to know if you have 20/20 vision right now," Lord said. "But there are certain ophthalmic practices that are essential. There are certain people who, if they don't get shots in their eyes, they could lose their vision."

For those hybrid businesses, there may be furloughs of nonessential staff and requirements that essential employees come into work. DeSantis' order comes as a shortage of resources for use by health care professionals has emerged, including personal protective equipment, such as N95 masks, due to the unprecedented demand for PPE arising from the rampant spread of the coronavirus.

COVID-19 is a severe acute respiratory illness that can spread among people through respiratory droplets and coming in contact with infected surfaces. Symptoms include coughing, fever and shortness of breath. As of 11 a.m. on Monday, there are 1096 confirmed cases of the coronavirus in Florida residents and 14 people have succumbed to the illness. Gov. DeSantis issued a state of emergency in Florida at the beginning of March.

Hospitals and businesses are unlikely to be exposed to litigation claims from the coronavirus outside of workers' compensation claims, so long as their employees are deemed providers of essential services.

"We need people working in our hospitals at this point," Lord said. "They are the definition of an essential worker at this point in time in our country."

Carlotta Roos, counsel at Morgan Lewis.

"Employees infected in the workplace would likely have to pursue their remedies under state compensation worker statues," said Carlotta Roos, counsel at Morgan, Lewis & Bockius. "Typically, those laws are the exclusive remedies for employees for injuries that arise under workplace illnesses. Those statues provide for a variety of remedies, including wage relief and medical expenses."

While there is a national shortage of PPE, Lord said an employee who does not get obtain an adequate supply of PPE and contracts the new virus would likely not have grounds to assert a legal claim against his or her employer, other than through the workers' compensation system. Lord notes, while masks and helpful, they are not "fail-safe."

 "We all go to work. We might get the flu; we might get even pneumonia. Is that normally a workers' comp claim?" Lord said. "Not normally. So, probably the worst-case scenario is a workers' comp claim."