The New York State Department of Health (DOH) recently released guidance and updated Frequently Asked Questions (FAQs) on the expansion of New York’s existing vaccination mandate for New York health care personnel (NYS vaccination mandate) to require health care personnel to receive a booster dose. Health care providers covered by the NYS vaccination mandate (covered entities) must ensure that personnel who are currently eligible for a COVID-19 booster dose have documentation of compliance with this requirement by February 21, 2022, and that personnel not currently eligible for boosters receive their boosters within 30 days of becoming eligible.
As a result of this guidance, all covered entities must require that health care personnel 1 subject to the NYS vaccination mandate who are currently eligible for a booster dose receive and provide documentation of receiving a booster dose by February 21, 2022. Health care personnel who are not currently eligible to receive a booster dose have 30 days from the day they become eligible to receive and provide documentation of receiving the booster dose.
The guidance provides that covered entities “may have to exercise operational discretion to determine when personnel are eligible for a booster,” provided they communicate to personnel that effective immediately, personnel are required to receive a booster dose as recommended by the Centers for Disease Control and Prevention (CDC), absent the receipt of a medical exemption, and have a reasonable system for documenting compliance with this requirement.
The regulation requires covered entities to determine on a case-by-case basis when personnel should have received a booster shot as recommended by the CDC. Currently, the CDC recommends that individuals who received an mRNA vaccine series (two doses of Moderna or Pfizer-BioNTech) receive an mRNA booster shot five months after completing their initial series. For individuals who received the Johnson & Johnson/Janssen COVID-19 vaccine, the CDC recommends that they receive a booster dose two months (eight weeks) after completing their Janssen primary series. In addition, it is recognized that covered entities may need to provide a temporary medical exemption from receiving a booster dose to certain personnel who may not be eligible for the booster five months after the primary series pursuant to the Interim Clinical Considerations for Use of COVID-19 Vaccines (i.e., with a recent COVID-19 diagnosis or having been treated for COVID-19).
Please contact Michael Paulsen (mpaulsen@manatt.com) with any questions you may have regarding this update or the NYS vaccination mandate.
1 In the guidance, DOH reminds covered entities that “personnel” subject to the NYS vaccination mandate are employees and nonemployee members of the medical and nursing staff, contract staff, students, and volunteers “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.” (10 NYCRR 2.61(a)(2).)