Key Takeaways:

• On October 4, 2023, New York’s COVID-19 vaccine requirement for healthcare employees was repealed

• The repeal is effective immediately

In August 2021, New York’s Department of Health adopted an emergency rule 10 N.Y.C.R.R. § 2.61 (the Rule) directing hospitals, nursing homes, hospices, adult care facilities, and other identified healthcare entities to “continuously require” certain of their employees to be fully vaccinated against COVID-19. The Rule established a medical exemption to the vaccination requirement, but—consistent with New York’s prior vaccination requirements for healthcare workers—did not include an exemption based on religious belief. Thereafter, the Rule was subject to various and ongoing legal challenges in court.

On May 24, 2023, the Department issued a statement indicating that it would not commence any new enforcement actions of the Rule. On October 4, 2023, the Rule was formally repealed, effective immediately.

A comment was submitted to the Department in opposition to repeal of the Rule, suggesting that the Rule be amended to require personnel in covered entities to be “up to date with their COVID-19 vaccination and wear a mask if they are not, during such times as the State Commissioner of Health determines COVID-19 to be prevalent.” In response to the comment, the Department noted that unlike influenza, COVID-19 has not completely established a seasonality and requiring health care facilities to track both influenza and COVID-19 vaccination status and/or mask wearing for all personnel would create significant logistical challenges for healthcare facilities. The Department also noted the unknowns surrounding future trends in COVID-19 case rates and the likely continuing evolution of federal vaccine recommendations.

Finally, the Department noted that by repealing the Rule, health care facilities will be able to determine on their own whether to implement a COVID-19 vaccination requirement or a face-covering requirement.