By: Alexandra Lapes and Tracey I. Levy

All individuals affiliated with general hospitals and nursing homes who engage in activities at those facilities such that if they were infected with COVID-19, they could potentially expose other personnel, patients or residents to the disease, must receive their first dose of the COVID-19 vaccine by September 27, 2021.  Affiliated individuals at various other types of group healthcare entities must meet an October 7, 2021 for their first dose of the vaccine, with very limited exemptions.

The Emergency Regulations imposing this mandate by the New York State Department of Health (“DOH”) represent one of the latest efforts to mitigate and prevent the spread of COVID-19.  The Emergency Regulations are premised on the view that within healthcare settings, unvaccinated personnel pose an unacceptably high risk of both acquiring COVID-19 and transmitting the disease to colleagues, vulnerable patients and residents, thereby exacerbating the risk of complications and staffing shortages.

Who is Covered and Who is Not

For the purposes of the Emergency Regulations, covered entities include:

• any facility or institution included in the definition of “hospital” in section 2801 of the Public Health Law, including but not limited to general hospitals, nursing homes, and diagnostic and treatment centers;
• any agency established pursuant to Article 36 of the Public Health Law, including but not limited to 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;
• hospices as defined in section 4002 of the Public Health Law; and
• adult care facility under the Department’s regulatory authority, as set forth in Article 7 of the Social Services Law.

Notably, the vaccine mandate carries broad coverage of all persons even affiliated with covered entities, and this will include many non-employees, contractors, staffing agency employees, and other individuals who work for entities that have a relationship with the covered entity.

No Testing-Out Option

Earlier last month, New York City had announced that employees at city-run healthcare facilities would be required to submit proof of vaccination or in the alternative, have the ability to “opt out”, and submit to weekly COVID-19 testing and provide proof of a negative test. In consideration of the new state mandate and Emergency Regulations, New York City’s regulations appear to be outdated, and the “opt out” testing alternative to vaccination will no longer be allowed.

Only Medical Exemptions Allowed

Unlike other regulations and guidance published at the federal level regarding the COVID-19 vaccine, the only permissible exception to the vaccine requirement is for those requiring a medical accommodation.  Entities must only consider this exemption if an individual has been certified by a licensed physician or certified nurse practitioner as having a pre-existing condition that makes immunization with COVID-19 vaccine detrimental to the health of the covered person.  Entities must document the nature and duration of the medical exemption, and if it is subsequently found that the vaccine is no longer detrimental to the person’s health, the person must then be fully vaccinated.  The Emergency Regulations permit no exemption based on religious beliefs or practice.  Ultimately, covered entities are permitted to terminate covered personnel who are not fully vaccinated and do not have a valid medical exemption, if they are unable to ensure individuals are not engaged in patient/resident care or expose other personnel.

Other Record Keeping Obligations

Covered entities must appropriately document that covered personnel are fully vaccinated against COVID-19, and document the review and determinations made on requests for medical exemptions and any reasonable accommodations. Covered entities must also have processes in place to ensure compliance with the mandate and may be asked to make those documents available to the DOH.  In addition, the DOH may request covered entities to report the number and percentage of those vaccinated against COVID-19, and those who have been granted medical exemption or reasonable accommodations.