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Our attorneys stay on top of changes in legislation, agency regulations, case law, and industry trends—then craft timely legal alerts to keep clients up to date on legal developments important to their business.

September 21, 2021

NYS DOH Issues FAQs Clarifying Parameters of COVID-19 Vaccination Mandate for Health Care Workers

On August 26, 2021, the New York State Department of Health (NYS DOH) issued an emergency regulation requiring certain health care providers to ensure that their employees receive the COVID-19 vaccine.

The regulation requires that covered health care entities require personnel to be fully vaccinated against COVID-19, with the first vaccine dose to be received by September 27, 2021, for general hospitals and nursing homes, and by October 7, 2021, for all other covered entities. The regulation applies to general hospitals and nursing homes, Article 28 outpatient settings, Article 36 providers (including home care agencies), hospices, and adult care facilities. “Personnel” is defined broadly and includes all persons employed or affiliated with a covered entity, whether paid or unpaid, including employees, members of the medical and nursing staff, contract staff, students, and volunteers who engage in activities that, if they were infected with COVID-19, could potentially expose other covered personnel, patients, or residents to the disease.

While the regulation allows for a medical exemption, the regulation was revised at the last minute to eliminate any religious exemption to the vaccine mandate. Notably, the elimination of the religious exemption makes New York State’s mandate stricter than the recently announced federal health care mandates. On September 14, 2021, a federal district court in New York temporarily blocked enforcement of the portion of the vaccine mandate that excluded religious exemption in an action brought by 17 medical professionals who allege that their sincere religious beliefs compel them to refuse the COVID-19 vaccines. The court ruled that, among other things, the NYS DOH is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination. The NYS DOH must respond to the medical professionals’ claims by September 22, 2021, and the court will issue a decision on or before October 12, 2021. The pending challenge to the religious exemption component does not invalidate the remaining requirements of the NYS DOH mandate.

On September 20, 2021, the NYS DOH issued guidance FAQs clarifying the application of the emergency regulation. The following are some of the key takeaways from the FAQs:

  • The mandate does not apply to:
    • Private medical and therapist practices
    • Entities certified under Article 44 of the Public Health Law, such as managed long-term care plans
    • Mental and Behavioral health facilities regulated by Article 31 of the Public Health Law
    • Fiscal intermediaries and personal assistants under the consumer directed personal assistance program (CDPAP) 
  • The mandate applies to members of the workforce who have no direct patient or resident contact if the personnel engages in activities that, if they were infected with COVID-19, could potentially expose other covered personnel.
  • The guidance clarifies which contractors are subject to the mandate:
    • Contractors, including nurses and other health care professionals contracted to provide care, must comply with the vaccine mandate if they function as employees or staff of the regulated facility, agency, or program or are under the covered entity’s direct control.
    • Among others, it does not apply to construction, plumbing, or electrical workers hired for specific jobs; medical equipment vendors; vending machine service personnel; and law enforcement officers entering the facility in their official capacity.  
  • The mandate applies to volunteers who have a formal relationship with the covered entity and who provide regularly scheduled volunteer services. It does not apply to one-time or sporadically visiting volunteers.
  • Covered entities must document COVID-19 vaccination status continuously, as needed, following the dates for initial compliance, including any documentation for a reasonable accommodation. 
  • In order to be receive a medical exemption, an employee must have a licensed physician or certified nurse practitioner certify that immunization with the COVID-19 vaccine is detrimental to the employee’s health, based on a preexisting health condition. 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.
  • The vaccine mandate is applicable to personnel that have already had COVID-19.

As noted in our prior alert, we are also awaiting guidance on the federal vaccination mandates, including the federal healthcare worker mandate, from the Occupational Safety and Health Administration and Centers for Medicare & Medicaid Services. Barclay Damon’s labor and employment and health care attorneys will continue to monitor developments and provide updates regarding COVID-19 vaccination mandates.

If you have any questions regarding the content of this alert, please contact Ben Wilkinson, counsel, at bwilkinson@barclaydamon.com; Bob Heary, Labor & Employment Practice Area chair, at rheary@barclaydamon.com; or another member of the firm’s Labor & Employment Practice Area; or you may contact Mary Connolly, associate, at mconnolly@barclaydamon.com, or another member of the firm’s Health Care & Human Services Practice Area.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com.

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