New York State Department of Health Adopts COVID-19 Vaccination Mandate For Health Care Workers

On August 26, 2021, the New York State Public Health and Health Planning Committee and the New York State Commissioner of Health amended the Official Compilation of Codes, Rules and Regulations of the State of New York (“NYCRR”) to codify the vaccination mandate. The newly amended sections provide additional details and guidance regarding the state’s COVID-19 vaccination mandate and they include:

• Defining “Covered entities” as any facility or institute included in the definition of “hospital” in section 2801 of the Public Health Law; any agency established pursuant to Article 36 of the Public Health Law; hospices as defined in Section 4002 of the Public Health Law; and adult care facilities under the Department’s regulatory authority. This includes, but is not limited to, general hospitals, nursing homes, diagnostic and treatment centers, certified home health agencies, long term health care programs, AIDS home care programs, and licensed home care service agencies. Federally Qualified Health Centers (“FQHC”) fall within the statutory authority of the Public Health Law and are considered “covered entities”.
• Defining “Personnel” to include all persons employed by a covered entity, “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.” 
• Covered personnel in general hospitals and nursing homes must receive their first dose by September 27, 2021.
• Covered personnel in all other covered entities must receive their first dose by October 7, 2021.
• Covered personnel may be exempted from the vaccination requirements based on certain medical grounds only.
• The amendment, as it currently stands, does not include a religious exemption from the vaccination requirement. Of note, there is concern that the exclusion of any provision for a religious-based exemption violates applicable federal, state, and city laws.  Accordingly, we are monitoring this development closely in light of the impending deadlines and advise our clients to adhere to current federal, state, and city laws regarding religious accommodations.
• Covered entities may be requested to report and submit documentation regarding the total number of covered personnel; the number and percentage of covered personnel who have been vaccinated against COVID-19; and the number and percentage of personnel for which medical or religious exemptions have been granted.
• The Department of Health “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 must develop and implement a policy and procedure to ensure compliance with these rules

As employees subject to this mandate seek vaccination, employers must keep in mind that, in accordance with New York State Labor Law, employers are required to provide employees with up to four (4) hours of paid leave for each COVID-19 vaccine injection they receive at the employee’s regular rate of pay. Additionally, the Emergency Temporary Standard (ETS) issued by OSHA in June 2021 requires that covered employers in settings where employees provide healthcare services or healthcare support services “support COVID-19 vaccination for each employee by providing reasonable time and paid leave (e.g., paid sick leave, administrative leave) to each employee for vaccination and any side effects experienced following vaccination.”

Next Steps and Takeaway

• New York healthcare employers must act quickly to develop and implement policy and procedures to ensure compliance with these amendments. As of today, there are no requirements or recommendations for posting or otherwise distributing information about this mandate to employees.
• In accordance with state and federal law, employers must adequately compensate employees who seek vaccination.
• Employees in general hospitals and nursing homes must receive this first dose of the COVID-19 vaccine by September 27, 2021; employees in all over covered facilities must do so by October 7, 2021.