Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
Update: The New York Department of Health issued its Order for Summary Action dated August 18, 2021. The Order provides additional details regarding the state’s COVID-19 vaccine mandate, including that:
- it currently applies to “a general hospital or nursing home pursuant to section 2801 of the Public Health Law” (covered entities)1
- it applies to personnel “who engage in activities such that if they were infected with COVID-19, they could potentially expose, patients, residents, or personnel working for such entity to the disease” (covered personnel)
- employees may be exempted on certain medical or religious grounds;
- covered entities must develop a policy and procedure to ensure compliance with the Order;
- covered entities may be requested to report the number and percentage of covered personnel who have been vaccinated against COVID-19 and the number of personnel for which medical or religious exemptions have been granted; and
- the Department of Health “may require all covered personnel, whether vaccinated or unvaccinated, to wear acceptable face coverings for the setting in which they work.”
The Order also sets forth the procedures by which a covered entity may contest the Order and may “present any proof that failure to implement and comply with the requirements of this Order does not constitute a danger to the health of the people of the State of New York.”
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On August 16, 2021, New York Governor Andrew Cuomo announced that all healthcare workers in New York State, including staff at hospitals and long-term care facilities such as nursing homes, adult care facilities and other congregate care settings, are required to be vaccinated against COVID-19. Healthcare workers must receive their first dose of the vaccination by September 27, 2021. This mandate is not only limited to public employees, but also extends to privately employed healthcare workers.
Pursuant to the governor’s directive, the New York State Department of Health is expected to issue orders pursuant to its authority under the New York Public Health Law that will require all hospital and long-term care facilities to develop and implement a policy mandating employee vaccinations, with limited exceptions for those with religious objections or medical contraindications to the COVID-19 vaccine.
The governor’s announcement comes on top of his June 28, 2021 announcement that all of New York State’s patient-facing healthcare workers at state-run hospitals must be vaccinated against COVID-19 by Labor Day (September 6, 2021), and cannot avail themselves of the option to be regularly tested for COVID-19 in lieu of vaccination. Based on the governor’s August 16th announcement, the vaccination deadline for the state’s patient-facing healthcare workers at state-run hospitals has seemingly been extended past September 6th to September 27th. Further guidance is expected from the state. It is hoped that there will be guidance on other issues as well, including: (i) who may be considered a healthcare worker; (ii) how a healthcare worker may sufficiently demonstrate a religious objection or medical contraindication to vaccination; (iii) how such objections or contraindications can reasonably be accommodated, and (iv) if a healthcare worker has already been vaccinated using vaccines administered outside of the United States (such as those emergency-use listed by the World Health Organization), whether those vaccines are accepted under the state’s new requirement.
New York City had previously announced that beginning August 2, 2021, employees at city-run health facilities would be required to submit proof of vaccination or “test out” wherein they submit to weekly COVID-19 testing and provide proof of a negative test. With the new state-imposed requirement, it appears that the city’s “test out” option has been superseded by the state’s requirements, and that employers that had been considering a testing option in lieu of vaccination will need to adjust their plans. The State Department of Health’s orders may clarify this issue further.
Healthcare employers are encouraged to speak with counsel regarding New York City and New York State’s vaccination requirements. We will continue to monitor developments in this area and provide updates as additional information becomes available.
1 Section 2801 of the Public Health Law, in turn, defines a “general hospital” as “a hospital engaged in providing medical or medical and surgical services primarily to in-patients by or under the supervision of a physician on a twenty-four hour basis with provisions for admission or treatment of persons in need of emergency care and with an organized medical staff and nursing service, including facilities providing services relating to particular diseases, injuries, conditions or deformities. The term general hospital shall not include a residential health care facility, public health center, diagnostic center, treatment center, out-patient lodge, dispensary and laboratory or central service facility serving more than one institution.”