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Vaccine Mandate Takes Effect for Healthcare Workers in New York

On August 26, 2021, the New York State Public Health and Health Planning Council and the Commissioner of Health passed an Emergency Regulation requiring that healthcare industry personnel obtain at least the first dose of the COVID-19 vaccine. 

Who is covered

"Covered entities" include: hospitals, general hospitals, nursing homes, and diagnostic treatment centers, "health agencies, long term home health care programs, AIDS home care programs, licensed home care service agencies, and limited licensed home care service agencies," hospices, and adult care facilities. 

"Personnel" is defined as those "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 other covered personnel, patients or residents to the disease." While the definition of "covered entities" is currently limited to those listed above, the state may revise the definition.

Under the regulation, general hospital and nursing home personnel, absent a medical exemption or reasonable accommodation, must receive the first dose of the vaccine by September 27, 2021, and personnel of all other covered entities must receive the first dose by October 7, 2021. "

Medical exemptions are permitted where a "licensed physician or certified nurse practitioner certifies that immunization with COVID-19 vaccine is detrimental to the health of member of a covered entity's personnel, based upon a pre-existing health condition." Therefore, affected companies may need to follow the Interactive Process under the Americans with Disabilities Act, as amended, as well as state and local equivalents, like New York City's Cooperative Dialogue process.

Notably, the absence of a religious exemption was challenged as unconstitutional by 17 medical professionals in New York. Therefore religious exemptions may be permissible under a temporary restraining order, at least until the federal court issues a final ruling on the matter.

Documentation and policy implementation

Covered entities must maintain documentation of personnel vaccinations and any medical exemption and reasonable accommodation in personnel records, and, upon request of the Department of State, must report and submit "(1) the number of personnel that have been vaccinated against COVID-19; (2) the number and percentage of personnel for which medical exemptions have been granted; (3) the total number of covered personnel." Documentation of medical exemptions must include "nature and duration of the medical exemption."

Additionally, covered entities must create and implement a policy to implement the above requirements.  The New York Department of State "may require all personnel, whether vaccinated or unvaccinated, to wear an appropriate face covering for the setting in which such personnel are working in a covered entity," and covered entities must supply the required face coverings without cost to personnel.  

Lastly, the regulation's "Job Impact Statement" provides that "covered entities may terminate personnel who are not fully vaccinated and do not have a valid medical exemption and are unable to otherwise ensure individuals are not engaged in-patient/resident care or expose other covered personnel."

The emergency regulation will expire 90-days after adoption, or on November 24, 2021, unless extended.