New York healthcare workers are now required to be vaccinated against COVID-19. Effective August 26, 2021, all employers of health care workers must mandate that their personnel receive a full COVID-19 vaccination. Employers should pay close attention to the new regulations as they have significantly changed the landscape of the healthcare industry in New York State.
Covered Entities
The regulations apply to each of the following categories of healthcare providers:
• general hospitals and nursing homes;
• diagnostic and treatment centers;
• certified home health agencies, programs, and services;
• home and in-patient hospices; and
• adult care facilities.
Personnel
The regulations apply to all individuals who are employed by, or affiliated with, a Covered Entity. This includes medical, nursing, and contract staff as well as students, volunteers, and anyone else who engages in activities such that if they were infected by COVID-19, they could potentially expose other covered personnel, patients, or residents.
Deadlines
Employees must receive their first COVID-19 vaccine dose, or have a documented approved exemption, by the following dates:
- September 27, 2021: deadline for employees of general hospitals and nursing homes to receive the first dose; and
- October 7, 2021: deadline for all remaining employees of Covered Entities to receive the first dose.
Employees must then become fully vaccinated within the timeline recommended for the specific vaccination received.
Exemptions
(1) Medical Exemptions
Employees may present a certification from a medical provider documenting that the COVID-19 vaccine would be detrimental to his or her health. If approved, the exempt employee must be provided a reasonable accommodation. Notably, the state did not specify what those accommodations may be; however, it is likely that any such accommodation will include routine COVID-19 testing, masks, social distancing, and/or work reassignment. Unfortunately, the state has tasked employers of health care workers to be “gatekeepers.” Employers must scrutinize medical exemption requests to ensure that they comport with generally accepted medical standards.
(1) Religious Exemptions
The new regulations do not allow for any religious exemptions. The Department of Health explicitly stated that Covered Entities will no longer be permitted to provide religious exemptions to employees covered by the COVID-19 vaccine mandate. While this conclusion conflicts with established federal guidelines and will almost certainly be challenged on constitutional grounds, until further notice, Covered Entities may not allow for religious exemptions.
Enforcement
The Department of Health has not established how it will enforce the new regulations. For now, employers are required to police this, including terminating personnel who fail to comply. The Department of Health may require production of documents and has the authority to initiate enforcement proceedings for noncompliance with its regulations, which could result in monetary penalties for the employer.
Face Coverings
Effective August 27, 2021 and until further notice, New York’s Commissioner of Health has mandated the use of face coverings within Covered Entities’ healthcare settings in accordance with CDC guidance. This applies to personnel and visitors – regardless of vaccination status. Covered Entities must make masks available at no cost.
We encourage you to speak with employment counsel regarding these rapidly changing vaccination requirements. We will continue to monitor developments and provide updates as additional information becomes available. If you have any questions on how this relates specifically to your business, Matt Miller, Practice Area Lead for the Rupp Baase Employment Law Team.
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