New York State has issued an emergency regulation mandating COVID-19 vaccination of personnel 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 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.
The emergency regulation was approved by the Public Health and Health Planning Council (PHHPC) on August 26, 2021, and is effective as of August 26, 2021, for a period of 90 days. The emergency regulation will be reviewed again by PHHPC prior to being renewed.
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.
Notably, the adopted emergency regulation was revised from the initial proposed emergency regulation and from the terms of the Section 16 Order issued by DOH to no longer include a religious exemption from the COVID-19 vaccination requirement.
Background
On August 16, 2021, then Governor Cuomo announced that all health care workers in hospitals and long-term care facilities would be required to be vaccinated for COVID-19 by September 27. On August 18, DOH issued hospitals and nursing homes Section 16 Orders requiring them to develop and implement a policy mandating employee vaccinations and require, on a continuous basis, that covered personnel be vaccinated for COVID-19, with limited exceptions for those with religious or medical reasons.
On August 23, DOH published a proposed emergency regulation to be reviewed and adopted by PHHPC that would codify the requirements contained in the Section 16 Order.1 The proposed emergency regulation expanded the scope of the Section 16 Orders to include D&TCs, CHHAs, LHCSAs and other entities. On August 25, DOH published a revised version of the proposed emergency regulation in which the religious exemption was removed.
Applicability
The emergency regulation applies to all persons employed or affiliated with a covered entity, whether paid or unpaid, 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. The emergency regulation specifically identifies employees, members of the medical and nursing staff, contract staff, students, and volunteers as employees subject to the vaccination requirement.
The following types of health care providers are included in the definition of “Covered Entities” for purposes of the emergency regulation:
- General hospitals
- Nursing homes
- Diagnostic and treatment centers
- Certified home health agencies
- Licensed home care services agencies
- Long-term home health care programs (LTHHCPs)
- AIDS home care agencies
- Limited LHCSAs serving assisted living programs (ALPs)
- Hospices
- Adult care facilities
Requirements
The emergency regulation requires Covered Entities to continuously require personnel to be 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 absent the documentation of a medical exemption, and to document evidence of vaccination or granted medical exemptions in personnel records.
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 the emergency regulation and ensure that such policy and procedure is available to DOH on request.
Exemptions
The emergency regulation contains a medical exemption to the COVID-19 vaccination requirement. Personnel are exempt from the COVID-19 vaccination requirement if a physician or nurse practitioner certifies that immunization would be detrimental to the health of the individual based upon a pre-existing condition. The medical exemption is applicable only until such immunization is found no longer to be detrimental to such personnel member’s health. The nature and duration of the medical exemption must be stated in the personnel employment record, and any reasonable accommodation may be granted and must likewise be documented in such record.
The emergency regulation requires medical exemptions to be granted in accordance with generally accepted medical standards (see, for example, the recommendations of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services). In discussion with PHHPC, DOH noted that Covered Entities should not grant medical exemptions that do not meet applicable standards. DOH has indicated that it may issue guidance on medical exemptions.
The department also indicated that any religious exemption already granted under the Section 16 Order must be revoked once the emergency regulations go into effect.
Face Covering in Health Care 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.”
Please contact a member of the Manatt team with any questions related to compliance with these requirements.
1 Public Health Law § 225 (5) authorizes PHHPC to issue regulations in the State Sanitary Code pertaining to any matters affecting the security of life or health or the preservation and improvement of public health in New York, including designation and control of communicable diseases and ensuring infection control at health care facilities and any other premises.