On August 26, 2021, the New York State Department of Health’s Public Health and Health Planning Council (“PHHPC”) approved an emergency regulation mandating COVID-19 vaccination of staff in hospitals, nursing homes, diagnostic and treatment centers (D&TCs), adult care facilities (ACFs), licensed home care services agencies (LHCSAs), certified home health agencies (CHHAs) and hospices (collectively referred to as “covered entities”).
The emergency regulation expanded the scope of previous vaccine directives from New York State. Specifically, on August 16, 2021, former Governor Andrew Cuomo announced that all healthcare workers in New York State are required to be vaccinated against COVID-19. The mandate was applicable to staff at hospitals and long-term care facilities such as nursing homes, adult care facilities, and other congregate care settings. The August 26, 2021 emergency regulation has expanded the mandate to include other types of healthcare providers.
The emergency regulation requires covered entities to ensure their personnel are fully vaccinated against COVID-19, with the first dose for current personnel received by September 27, 2021, for general hospitals and nursing homes, and by October 7, 2021, for all other covered entities. Notably, the emergency regulation eliminated the exemption from the vaccine mandate for sincerely held religious beliefs.
The emergency regulation took effect immediately August 26, 2021 and will be effective for 90 days unless renewed, modified or a notice of proposed rulemaking is issued for permanent adoption.
The emergency regulation applies to each of the following categories of health care providers licensed by the state of New York pursuant to the Public Health Law or Social Services Law:
- General hospitals and nursing homes (which are subject to an earlier deadline described below).
- Diagnostic and treatment centers, including without limitation community health centers and other federally qualified health centers, dental clinics and dispensaries, midwifery birth centers, and rehabilitation clinics.
- 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.
- Home and in-patient hospices.
- Adult care facilities.
All individuals who are employed by or otherwise affiliated with a covered entity, regardless of whether they are paid, will be subject to the emergency regulation. This includes medical and nursing staff, contract staff, 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.
To comply with this emergency regulation, covered entities are required to:
- Develop and implement a policy and procedure to ensure, on a continuous basis, that covered personnel are vaccinated for COVID-19 in compliance with the provisions of emergency regulations and ensure that such policy and procedure is available to the Department of Health (“DOH”) on request;
- Ensure that personnel are fully vaccinated against COVID-19 by the applicable deadlines for receiving the first doses and document such vaccination status in personnel records;
- Review and make determinations on requests for medical exemptions and provide reasonable accommodations for any employee qualifying for an exemption in order to protect the well-being of the patients, residents and personnel in such facilities;
- Document medical exemptions and reasonable accommodations in personnel records and ensure that such documentation is immediately available upon request by DOH; and
- Upon the request of DOH, report the number and percentage of total covered personnel; the number and percentage that have been vaccinated against COVID-19; and those who have been granted a medical exemption, along with any reasonable accommodation.
Face Coverings in Healthcare Settings
In addition to the COVID-19 vaccination requirement, the emergency regulation provides that “[t]he Department 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. Covered entities shall supply face coverings required by this section at no cost to personnel.”