The New York State Health Department’s Vaccine Mandate, adopted on August 26, requires personnel at general hospitals and nursing homes to have at least their first COVID-19 vaccination dose by September 27. Personnel at ambulatory surgery centers, diagnostic & treatment centers, hospices, home care agencies, and adult care facilities regulated by the Department of Health must receive their first vaccine dose by October 7. As facilities throughout New York state have been struggling this week to put compliance procedures in place, there have been two recent developments.

First, United States District Judge David Hurd has extended the Temporary Restraining Order, which prohibits DOH from enforcing the Mandate in a manner that requires employers to deny or revoke religious exemptions, through October 12. This means that, in order to ensure compliance with federal employment law while the TRO remains in place, Covered Entities should entertain, process, and decide upon applications for religious exemptions and accommodations from the Vaccine Mandate through at least October 12.

Second, DOH issued a “Frequently Asked Questions” providing some key clarifications regarding the Vaccine Mandate, including:

• Private physician and other health care practices do not fall within the definition of a Covered Entity, and therefore are not subject to the Vaccine Mandate.
• OPWDD, OMH, and OASAS programs are not Covered Entities unless they have an operating certificate issued by DOH in one of the covered categories (hospitals, nursing homes, adult care facilities, )
• Personnel at Covered Entities subject to the Vaccine Mandate include not only personnel in direct contact with patients or residents, but also personnel who, if they were infected with COVID-19, could potentially expose other covered personnel who do have direct contact.
• Contractors must comply with this regulation if they (1) function as employees or staff of the regulated facility, agency, or program; or (2) are under the Covered Entity’s direct control.
• Contractors who typically would not be subject to the Vaccine Mandate include:
  • contracted construction/plumbing/electrical workers hired for a specific job,
  • medical equipment vendors,
  • vending machine service personnel,
  • EMS, ambulette, or other transportation services personnel who are neither function as employees of the Covered Entity nor under the Entity’s direct control.
  • laboratory and radiology technicians who provide services to a Covered Entity by contract (g., enter a nursing home intermittently to draw blood or perform medical imaging procedures), but who do not function as employees or staff of the Covered Entity and are not under the Entity’s direct control, or
  • law enforcement officers entering the facility in their official capacity.
• Volunteers who have a formal relationship with the Covered Entity and who provide regularly scheduled volunteer services are subject to the Vaccine Mandate.
• Private duty healthcare providers are considered in affiliation with the Covered Entities in which they work, and are thus subject to the Vaccine Mandate, However, private duty companions are not considered in affiliation, and therefore are not subject to the Mandate.
• The publications of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services (ACIP) are considered by DOH to be generally accepted medical standards for COVID-19 vaccination medical exemptions.
• Personnel granted medical exemptions may continue their normal job responsibilities, provided that they comply with all applicable requirements for personal protective equipment, including masking. Existing state regulations and guidance may require medically exempt personnel to undergo regular COVID-19 testing.
• Medical exemptions are not indefinite. The nature and expected duration of the medical exemption must be stated in the personnel employment medical record, or other appropriate record. The medical exemption is applicable only until COVID-19 immunization is found no longer to be detrimental to the personnel member’s health.
• Only people who have received a complete series of a COVID-19 vaccine that is either approved or authorized for emergency use by the U.S. Food and Drug Administration (FDA) or the World Health Organization (WHO) are fully vaccinated.
• There is no exemption to the Vaccine Mandate for personnel who have already had COVID-19..

While DOH’s Frequently Asked Questions document provides some clarification on the open or uncertain issues relating to the Vaccine Mandate, there are still open and unanswered questions. We expect there to be additional information forthcoming in the near future.