Effective Aug. 26, 2021, New York State now requires all employers of health care workers working within the state to ensure that their personnel have received a full COVID-19 vaccination. The definition of “personnel” contained in the new regulation is expansive, including employees, students, volunteers and any other affiliates of the organization who “engage in such activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.”
Covered entities under the regulation are to continuously require personnel to be fully vaccinated against COVID-19, with the first dose for those not presently vaccinated to be received by Sept. 27, 2021 for general hospitals and nursing homes, and by Oct. 7, 2021 for all other covered entities, including but not limited to certified home health agencies, long term home health care programs, licensed home care services agencies, hospices and adult care facilities. Documentation of proof of vaccination must be maintained in the personnel files of each employee/affiliate of the organization.
Notably, the finalized regulation only explicitly allows for medical exemptions to vaccination, omitting any reference to a religious exemption. For a valid medical exemption, a licensed physician or certified nurse practitioner must certify that immunization with a COVID-19 vaccination is detrimental to the health of a member of a covered entity’s personnel, based upon a preexisting heath condition, and ceases to be effective if it is later found that vaccination would not be detrimental to that personnel member’s health. The nature and duration of the medical exemption must be documented in the personnel file of the member of the organization in accordance with the same timeline for the vaccination requirements, along with documentation of whatever reasonable accommodations are granted in conjunction with the exemption.
Covered entities are required to report and submit documentation to the New York State Department of Health (the Department), upon request, which identifies the number and percentage of personnel that have been vaccinated, the number and percentage of personnel who have been granted medical exemptions/reasonable accommodations and the total number of covered personnel. Covered entities are also required to develop and implement policies and procedures to ensure compliance with the vaccination requirement, and are subject to submitting those policies to the Department upon request. Additionally, the regulation also gives the Department the authority to require personnel of covered entities to wear face coverings, whether vaccinated or unvaccinated. Face coverings are to be provided by the covered entity at no cost to the personnel.
Presently, this regulation is only in effect for 90 days from Aug. 26, 2021, with leave given to the Department to renew the duration of the regulation up until its expiration date. Given the uptick in the Delta variant of COVID-19 and New York’s history of extending other temporary emergency authorizations, it can likely be assumed that the Department will extend the duration of the regulation past its current expiration date.
The regulation currently does not provide for any sort of penalties for noncompliance by covered entities or personnel. Covered entities may terminate personnel who are not fully vaccinated and without a valid medical exemption, and where the entity is unable to otherwise ensure that the individual is not engaged in patient/resident care, or could expose other covered personnel.
We will continue to provide any updates on this regulation and its enforcement as they develop. For any further questions on this matter, please contact Travis R. Talerico, any attorney in Bond’s Labor and Employment practice or the Bond attorney with whom you are regularly in contact.