Changes for Your Next Contract
The COVID-19 pandemic and employers’ response to it will probably continue to resonate even after the emergency is over. All of the legal experts expect to see changes in new or renewed contracts going forward.
Explore This IssueApril 2021
Among these changes is the inclusion of what are called “force majeure provisions.” These provisions are used to free both parties from liability or obligation when an extraordinary event or circumstance beyond the control of the parties, such as a war, strike, riot, crime, epidemic, sudden legal changes, or an event described by the legal term “act of God,” prevents one or both parties from fulfilling their obligations under the contract.
Few physician contracts had force majeure provisions prior to COVID-19; it has been the standard that physicians were required to show up even during floods, natural disasters, or pandemics. Medical employers have never wanted force majeure clauses as part of their agreements because someone has to treat the patients—medical facilities needed the ability to make physicians come to work.
“When you see a force majeure clause, the first thing you want to do is to make sure that the clause goes both ways, covering both the employee and employer” said Kelso. “Either party should be able to decide if they want to comply based on a force majeure event. For example, you might not want to come to the hospital and bring COVID-19 home to your kids, spouse, or parents.”
During contract negotiations, try to get any force majeure provisions limited as much as possible. Negotiate what constitutes a force majeure event and limit it to acts of God as outlined by common and case law. Make sure your responsibilities to the employer and their responsibilities to you in return are spelled out. Attempt to get a limit on how long a force majeure event can continue and/or a reevaluation at specified intervals of whether the force majeure conditions still exist. If possible, include wording that automatically ends the event if the reevaluation isn’t completed.
“For those physicians who have contracts already in force that are coming up for renewal, force majeure provisions may be less of a concern,” said Kelso. “Most contracts automatically renew. If the employer wants to insert a force majeure provision, that will open up the language of the entire contract for renegotiation.”
During your current contract and any new ones going forward, don’t just sign whatever is placed in front of you. Contact an attorney who specializes in physician contracts when you need information.
“It’s a tough situation for doctors to be caught between a rock and a hard place in contract law, an area they aren’t trained in,” said Mayer. “Physicians should consider their individual situation, consult with otolaryngology colleagues when feasible, and talk to an attorney when necessary. They shouldn’t feel forced into blindly doing whatever the employer requests—physicians should have some say as well.”