On August 26, 2021, the New York State Department of Health’s Public Health and Health Planning Council in Albany voted to amend the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), significantly expanding the emergency Covid-19 vaccination mandate previously announced by former Governor Andrew Cuomo. Whereas the previous mandate applied only to healthcare workers at general hospitals and long-term care facilities (LTCFs), the amended regulations now require workers in nearly all categories of healthcare facilities in New York State to comply. The stated purpose of the expanded vaccine mandate is to prevent or reduce the transmission of Covid-19 by those “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.”
Under the newly-added NYCRR § 2.61, covered entities must “continuously require personnel to be fully vaccinated against COVID19, 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 receipt of an [allowed] exemption.” Significantly, the new regulations go on to provide that a covered entity “may terminate personnel who are not fully vaccinated and do not have a valid medical exemption and are unable to otherwise ensure individuals are not engaged in patient/resident care or expose other covered personnel.” Upon request by the Department of Health, all covered entities are required to report and submit documentation confirming the number and percentage of personnel who have been fully vaccinated, the number and percentage of personnel who have received medical exemptions, and the total number of covered personnel.
In addition to general hospitals and LTCFs, “covered entities” now include: diagnostic and treatment centers, including community health centers, dental clinics, birthing centers, and rehabilitation facilities; certified home health agencies, including long term home health care programs and AIDS home care programs; hospices; and adult care facilities. “Personnel” includes all individuals “employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers.” However, physicians and dentists in private practice are not subject to the mandate, as the New York State Department of Health has primary regulatory jurisdiction only over the health care facilities it licenses.
Shortly after the Council voted, New York State Department of Health Commissioner Howard Zucker issued a Determination on Indoor Masking which states that, pursuant to NYCRR § 2.61, effective August 27, 2021, masks shall be required: in healthcare settings for personnel and all visitors, regardless of vaccination status; in adult care facilities (ACFs) regulated by the Department for personnel and unvaccinated visitors; in P-12 school settings for all teachers, staff, students, and visitors, regardless of vaccination status; in correctional facilities and detention centers for all incarcerated/detained persons and staff when social distancing cannot be maintained, and for all visitors (facilities may impose their own policies for private visitation); in homeless shelters (including overnight emergency shelters, day shelters, and meal service providers) for all clients, visitors, staff and volunteers, regardless of vaccination status; and on public transportation conveyances and at transportation hubs, for all persons regardless of vaccination status. Any applicable restrictions apply to all persons over the age of two who are able to medically tolerate a face covering.
Notably absent from the expanded mandate is the religious exemption, which was deliberately struck before the final vote. Religious exemptions have historically been granted to individuals belonging to religious organizations whose foundational beliefs and practices discourage or reject vaccination. Under NYCRR § 2.61, only medical exemption is available, and personnel seeking such exemptions must submit supporting documentation. The nature and duration of the medical exemption must be stated, either in the personnel employment medical record or other appropriate record, and must be in accordance with generally accepted medical standards, such as the recommendations of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services.
The Council’s decision follows on the heels of an announcement by United States Supreme Court Justice Amy Coney Barrett on August 12, 2021, denying an emergency request to block Indiana University’s mandatory vaccine policy. By rejecting the request without referring the application to the full court or asking the university for a response, Justice Coney Barrett appears to have sent a message that the Court is unlikely to revisit, let alone overturn, the landmark ruling in Jacobson v. Massachusetts (197 U.S. 11 (1905)). The Second Circuit has also upheld Jacobson in several cases in Connecticut and New York since the start of the pandemic. Given the courts’ demonstrated reluctance to revisit longstanding public health policy, it is unlikely a challenge to these regulations will succeed, especially since the circumstances here are factually similar to the policy at issue in Jacobson.
Since the new regulations do not include an enforcement provision, covered entities will be expected to self-enforce for the time being. The Department could impose financial penalties, but unlike the P-13 school mask mandate, which includes a $1000 fine per violation, NYCRR § 2.61 contains no penalty provision. It is unclear what consequences may result for covered entities that fail to comply and/or fail to terminate employees who refuse to be vaccinated. Although hospitals appear to be generally in favor of the new regulations, whether employers will actually terminate non-exempt employees who refuse vaccination could boil down to whether the employer will face a severe staff shortage. On the other hand, the latest Higher Education Research and Development (HERDS) survey indicates that a majority of healthcare workers are already vaccinated, with the lowest rates being reported by Dutchess and Wyoming Counties (63%). New York City is at 75% overall. Personnel who chose to be vaccinated before now will not enter into the calculus, so any turnover consequences may be limited. Covered entities may have to wait until after the initial Sept. 27 deadline passes to learn whether the Department intends to assume responsibility for enforcement.
NYCRR § 2.61 must be renewed by the Council every 90 days until emergency-basis renewal is deemed unnecessary or the Department issues a notice for proposed rule-making for permanent adoption.
Jessica Woodrow is an Associate Attorney in the litigation and administrative proceedings practice group, handling matters involving all aspects of civil litigation with a primary practice focus on healthcare law. She can be reached at firstname.lastname@example.org or 516-627-7000.
Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.
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