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New York Department of Health Issues Covid-19 Vaccination Mandate for Healthcare Workers

The New York State Department of Health (DOH) has issued an order and emergency regulations mandating that all healthcare workers in hospitals and certain other healthcare facilities to be vaccinated.

The DOH’s order mandates that healthcare workers in general hospitals and nursing homes in New York receive at least the first dose of an approved COVID-19 vaccine by September 27, 2021. In addition, on Thursday, August 26, 2021, the New York State Public Health and Health Planning Council (“PHHPC”) adopted emergency regulations that implement a similar requirement for all healthcare entities regulated by the DOH (emergency regulations).

The order and the emergency regulations define which entities and personnel are covered, and it should be noted the “covered personnel” is defined very broadly.

Covered Entities. The order considers covered entities to only be general hospitals and nursing homes, as defined by Section 2801 of the New York Public Health Law, while the emergency regulations extend to all facilities and institutions including those defined under Article 36, Sections 2801 and 4002 of the New York Public Health Law and Article 7 of the Social Service Law which includes diagnostic and treatment centers, certified home health agencies, long-term home health care programs, AIDS home care programs, licensed home care service agencies, and limited licensed home care, hospices, and adult care facilities.

What is Contained in the DOH Order? Covered entities are required to report and submit documentation to the DOH, upon request, which identifies the number and percentage of personnel that have been vaccinated and the number and percentage of personnel who have been granted medical or religious exemptions and the total number of covered personnel.

Covered Personnel. The DOH’s order extends 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 patients, residents, or personnel working for such entity to the disease.

Face coverings must be provided free of charge to all covered personnel, whether vaccinated or unvaccinated. Said face coverings must also be deemed acceptable for the setting in which they work, and whose use the DOH may mandate.

Covered entities are also required to develop and implement policies and procedures to ensure compliance with the vaccination requirement and are subject to submitting those policies to the DOH upon request.

The order maintains a compliance date of September 27, 2021.

What is Contained in the Emergency Regulations? On August 26, 2021, the DOH proposed, and the PHHPC approved, emergency regulations that also require mandatory COVID-19 vaccination for certain healthcare personnel for which the scope of regulations is significantly broader than that of the order.

The emergency regulations require all covered entities to submit documentation of the following statistics to the Department upon request and “in a manner and format determined by the Department”:

  • The number and percentage of personnel who have been vaccinated against COVID-19;
  • The number and percentage of personnel for whom medical exemptions have been granted; and
  • The total number of covered personnel.

All covered entities must develop and implement policies and procedures to ensure compliance. The regulations further provide those covered entities shall submit such documents to the Department of Health upon request.

The emergency regulations require all covered entities to provide face coverings free of charge to all covered personnel, regardless of vaccination status. The emergency regulations also indicates that covered entities may mandate the wearing such face coverings while working in a covered entity, regardless of vaccination status.

Like all emergency regulations, the Department of Health’s regulations are immediately effective. Although the regulations expire after 90 days, the Department of Health likely will seek recurring re-approvals of the regulations at subsequent PHHPC meetings.

Differences Between the DOH Order and Emergency Regulations. As previously mentioned, the definition of covered entity differs under the order and the emergency regulations. The order applies only to “general hospitals” and “nursing homes,” whereas the emergency regulations apply to a broader range of healthcare settings (refer to the “Covered Entities” above.)

The order and emergency regulations have differing compliance dates for covered personnel as it relates to when the first vaccine dose must be completed. Covered personnel under the order must receive their first dose of the COVID-19 vaccine by September 27, 2021, whereas, covered personnel of entities covered by the emergency regulations have until October 7, 2021 to receive their first dose.

The order appears to be written to be fairly consistent with the reasonable accommodations available to employees under federal law, the New York State Human Rights Law, and the New York City Human Rights Law, whereas, the emergency regulations are not.

The DOH order permits two limited exemptions to the vaccine mandate, which covered entities may grant as reasonable accommodations for covered personnel:

  • Medical Exemption: For a valid medical exemption, a licensed physician or certified nurse practitioner must certify that immunization with a COVID-19 vaccination is “detrimental” to the health of a member of a covered entity’s personnel, based upon a pre-existing health condition, but only until the COVID-19 vaccine is found to no longer be detrimental to the individual’s health.
  • Religious Exemption: The individual holds “a genuine and sincere religious belief contrary to the practice of immunization.” However, the DOH’s emergency regulations do not include a religious exemption to supersede this provision of the order. Accordingly, the DOH’s current position is that covered entities may not issue religious exemptions and those that already have been issued are effectively revoked.

Because the order and emergency regulations are inconsistent with one another, and the emergency regulations are not entirely consistent with employers’ reasonable accommodation obligations under federal and state law, covered entities may encounter situations where their obligations may conflict with the Americans with Disabilities Act or Title VII. Unless further agency guidance is issued to address these conflicts, covered entities should consult with legal counsel on their obligations in this area.

Next Steps for Employers

It is unclear whether the DOH will issue further guidance or frequently asked questions (FAQs) to assist covered entities with complying with their obligations under the order and/or the emergency regulations, or if that guidance will come prior to the respective effective dates (September 27 and October 7). For now, covered entities should prepare to comply with both the order and the emergency regulation by their effective dates. Additionally, employers who contract with covered entities to provide services involving contact with a covered entity’s patients, residents, and personnel should be prepared to take steps to implement the relevant requirements for their own employees. Covered entities with unionized personnel should consult with legal counsel regarding collective bargaining implications. Employers who are still uncertain whether they fall within the scope of a covered entity should also consult legal counsel for additional guidance.

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