New York Healthcare Worker Vaccination Mandate

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The New York State Department of Health has issued emergency temporary regulations requiring healthcare workers in various settings to receive the COVID-19 vaccine. The healthcare worker vaccination mandate includes most employees of hospitals and nursing homes. Employees and other personnel of some additional healthcare facilities and programs are also subject to the mandate. Covered workers who don’t become vaccinated in time could lose their positions.

Given the emergency nature of the regulations, they are only in effect for 90 days. They will expire in late November 2021 unless extended or adopted as permanent regulations.

Covered Entities

The New York healthcare worker vaccination mandate applies to personnel working for all of the following:

  • Hospitals
  • Nursing Homes
  • Diagnostic and Treatment Centers
  • Home Health Agencies
  • Long Term Home Health Care Programs
  • AIDS Home Care Programs
  • Licensed Home Care Services Agencies
  • Hospices
  • Adult Care Facilities

Most of the above terms are more specifically defined by law or regulations.

Generally, private “doctor’s offices” are not directly subject to the vaccination mandate. However, given the array of practice arrangements, providers should carefully consider whether they are covered.

Covered Personnel

The vaccine mandate extends beyond employees of these healthcare providers.

It applies to “all persons employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers, who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.”

This definition is extensive. It may allow healthcare companies some flexibility in who must receive the vaccine. However, it would seem to cover most people (other than patients/visitors) who would come into contact with anyone else.

Vaccination Requirement

Covered personnel must eventually become fully vaccinated to continue to work/participate in their healthcare positions. They must at least obtain a first dose by September 27, 2021, if they work in hospitals, or by October 7, 2021, if they work in any other covered entity.

Healthcare entities must obtain proof of documentation for each worker and retain a copy in personnel or similar files. Employers must comply with privacy requirements. For example, medical documentation must be maintained separately from general employment records under the Americans with Disabilities Act.

Exemptions

The Department of Health regulations only permit a medical exception to the healthcare worker vaccination mandate. The Commissioner of Health had previously suggested a religious exemption would be available, but that was dropped.

A covered entity may excuse personnel from the vaccine requirement “if any licensed physician or certified nurse practitioner certifies that immunization with COVID-19 vaccine is detrimental to the health” of a person “based upon a pre-existing health condition.”

Healthcare companies may make any “reasonable accommodation” for workers with a medical exemption. Any exemption or accommodation must be documented in personnel records, again in compliance with applicable privacy laws.

The DOH regulations do not necessarily require companies to make exemptions or accommodations in every instance. They also don’t specify which accommodations are reasonable. These questions must be analyzed on a case-by-case basis.

Compliance

The regulations add requirements that covered entities must provide proof of documentation and exemptions to the Department of Health upon request. The regulations do not specify penalties for non-compliance. However, fines or potential loss of license may be possible for violations.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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