In August 2021, the NY Department of Health (DOH) issued a COVID-19 vaccination mandate (Emergency Regulation) for healthcare workers which required that covered workers had received at least one dose of the vaccine by September 27. At the time of issuance, the mandate permitted an exemption to the requirement for medical related reasons but excluded a religious exemption.
The absence of a religious exemption resulted in a lawsuit being filed against the state for which a temporary injunction was issued, permitting religious exemptions. The U.S. Second Circuit Court of Appeals decided whether to allow the injunction to remain permanent. The Court ruled in favor of the state and permitted the Emergency Regulation to stand without any religious exemptions. This means healthcare workers who were granted a religious exemption from the vaccine mandate while the temporary injunction was in place are no longer able to claim a religious exemption, resulting in covered healthcare workers needing to have received their first vaccination (if receiving a two-dose series) as of November 22, 2021. The DOH also sent notice to health care providers across the state, saying employees must have “documentation of either a first dose COVID-19 vaccination or a valid medical exemption” to continue working unvaccinated.
Which Entities are Covered under the Emergency Regulation?
“Covered entities” include:
- Any facility or institution included in the definition of “hospital” in section 2801 of the Public Health Law, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers;
- Any agency established pursuant to Article 36 of the Public Health Law, including but not limited to certified home health agencies, long term home health care programs, acquired immune deficiency syndrome (AIDS) home care programs, licensed home care service agencies, and limited licensed home care service agencies;
- Hospices as defined in section 4002 of the Public Health Law; and
- Adult care facility under the Department’s regulatory authority, as set forth in
- Article 7 of the Social Services Law.
Which Workers are Covered by the Emergency Regulation?
Covered workers include employees and non-employee 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.”
How Does the DOH Guidance Address Religious Exemptions?
To provide some clarity, the DOH has updated its Frequently Asked Questions (FAQs) on Emergency Regulation and has addressed the topic of religious exemptions (see question 20). The guidance on religious exemptions reaffirms its initial position that there is no exemption from the state’s vaccine mandate for religious reason, but employees may avail themselves of a reasonable accommodation based on their religion under Title VII of the Civil Rights Act, signaling to employers to treat these requests in accordance with their normal process for religious accommodations of engaging in the interactive process and conducting a case-by-case analysis.
The guidance does make clear that in no case, would a reasonable accommodation be one that permits personnel to remain working unvaccinated, if they are in a position which could expose other to COVID-19. Specifically, the guidance explicitly states, “while this regulation does not preclude such reasonable accommodation requests and considerations, covered entities cannot permit unvaccinated individuals to continue in “personnel” positions such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease.” Applicable accommodations may include transfers to a “non-personnel” related position, remote work, or any other that eliminates risk of exposure.
Next Steps for Employers
Employers should have contacted any employees for whom they provided an exemption from the vaccine mandate due to religion to confirm their vaccination status and have engaged in the interactive process under the ADA to determine if a reasonable accommodation exists.
Employers should continue to consult with legal counsel for guidance with making individualized assessments in determining the appropriate accommodation or whether an undue hardship may exist.