Health Care Personnel Vaccination Mandate Updates

The Department of Health (DOH) issued a Dear Administrator Letter (DAL) on Nov. 15^th on the State's health care personnel vaccination mandate, imposing a deadline for compliance with a more restrictive approach to religious exemptions. In addition, further analysis of the Centers for Medicare and Medicaid Services (CMS) vaccination mandate regulation has revealed that board members are subject to the requirement.

DOH DAL

The DAL gives covered providers one week to ensure full compliance with the State's health care personnel vaccination mandate, in light of the Second Circuit ruling that lifted the temporary injunction and DOH's recent Frequently Asked Questions (FAQ) document on religious exemptions. Specifically, the DAL requires covered providers to ensure that covered personnel who were previously granted religious exemptions have either a first dose of the COVID-19 vaccine or a medical exemption by Nov. 22^nd. Alternatively, these personnel may be given a permissible religious accommodation by Nov. 22^nd. However, under the most recent DOH FAQ on religious exemptions, the only permissible religious accommodations appear to be those that would “eliminate the risk of exposure,” such as telework or telehealth assignments. According to the FAQ, providers “cannot permit unvaccinated individuals to continue in ‘personnel’ positions such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.” 

Providers must have a process in place to consider requests for religious accommodations based on sincerely held religious beliefs, as well as medical exemptions. Under the State FAQ, individuals with medical exemptions may continue normal job responsibilities, "provided that they comply with all applicable requirements for personal protective equipment, including masking." In addition, unvaccinated individuals with medical exemptions who work in nursing homes must comply with routine testing requirements.

Information and resources on reviewing religious exemptions are available at the following links:

• Equal Employment Opportunity Commission (EEOC) Guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws (See Section K, Question K.12 on Vaccinations and Exemptions)
• EEOC Guidance: Compliance Manual on Religious Discrimination
• Federal Employee Form for Requesting Religious Exemption (template)

As a reminder, under the State’s vaccination regulation:

• Covered Entities are: “any healthcare facility licensed under Article 28 of the Public Health Law (including general hospitals, nursing homes, diagnostic and treatment centers, and adult day healthcare programs); agencies and programs licensed under Article 36 of the Public Health Law (including certified home health agencies, licensed home care services agencies, long term home health care programs, AIDS Home Care Programs, and limited licensed home care services agencies); any hospice licensed under Article 40 of the Public Health Law; and any assisted living or adult care facility regulated by the Department under the Social Services Law (including adult homes, assisted living programs, enriched housing programs, and residences for adults).”
• Covered Personnel are: The vaccination mandate regulation (NYCRR Section 2.61(a)(2)) defines “personnel” as employees and non-employee 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.” In addition, contractors must comply with this regulation if they (1) function as employees or staff of the covered entity; or (2) are under the covered entity’s direct control. Examples of contractors who are NOT subject to this regulation include, but are not limited to:
  • contracted construction/plumbing/electrical workers hired for a specific job(s);
  • medical equipment vendors;
  • vending machine service personnel;
  • one-time or sporadically occasional entertainers hired by contract;
  • EMS, ambulette, or other transportation services personnel in a contract relationship with a covered entity, but who do not meet the definition of functioning as employees or staff of the facility, agency, or program, or being under the entity’s direct control;
  • laboratory and radiology technicians who provide services to a covered entity by contract (e.g., enter a nursing home intermittently to draw blood or perform medical imaging procedures), but who do not function as employees or staff of the covered entity and are not under the covered entity’s direct control, are not personnel of the contracting covered entity;
  • law enforcement officers entering the facility in their official capacity.

The State's vaccination mandate does not apply to:

• Private medical and therapist practices;
• Entities certified under Article 44 of the Public Health Law, such as Managed Long Term Care (MLTC) plans; however, the regulation does apply to covered entities (e.g., certified home health agencies or licensed home care services agencies) that are owned or operated by or in conjunction with an Article 44 entity;
• Mental/behavioral health facilities regulated by Article 31 of the Mental Hygiene Law; however, the regulation does apply to mental/behavioral health units of health care facilities that are also regulated under Article 28;
• Fiscal intermediaries (FIs) and personal assistants under the Consumer Directed Personal Assistance Program (CDPAP).

CMS Health Care Personnel Vaccination Regulation and Board Members

As previously reported, under the CMS regulation, staff must receive, at a minimum, their first dose of the vaccine prior to providing any care or services for the facility or agency by Dec. 5^th and be fully vaccinated by Jan. 4, 2022. Providers must have policies and procedures in place by Dec. 5^th to support compliance.

LeadingAge NY has been alerted by LeadingAge National that board members are subject to the federal vaccination requirement. Under the regulation, volunteers must be vaccinated, and the vaccination requirement applies “regardless of clinical responsibility or resident contact.” The preamble to the regulation in the Federal Register specifies that the mandate applies to “other fiduciary board members.” However, the CMS FAQ provides that individuals who work exclusively remotely and do not have any direct contact with patients or staff are not subject to the vaccination requirement. Thus, it appears that a board member who never enters the organization's premises or attends off-site events with provider staff would not be subject to the requirement. Otherwise, board members are covered.

LeadingAge National has compiled a list of 10 processes that providers should implement to comply with the federal mandate. In addition, LeadingAge National has developed template policies and procedures governing the staff vaccination mandate for members. Policies and procedures adopted under the State regulation should generally satisfy the federal requirements, except that the CMS regulation requires some additional provisions in connection with medical exemptions:

• CMS requires providers to implement additional precautions for staff who are not vaccinated. Thus, for example, personnel who present a certification from a physician or nurse practitioner that the vaccine is detrimental to their health are exempt from the State and federal mandate until the vaccine is no longer a health risk and may continue to work. Under the CMS regulation, if these personnel work in a role that could expose others to COVID-19, they should be subject to additional precautions to mitigate the risk that they might transmit the virus to others. It is not clear at this time what precautions CMS has in mind.
• CMS specifies the collection of certain information regarding medical exemptions that is not required by the State regulation. In particular, the federal regulation requires facilities to maintain documentation that contains "all information specifying which of the authorized COVID-19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications. Additionally, a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID-19 vaccination requirements is also expected."

More information about the CMS regulation is available here. More resources and tools from LeadingAge National are available here. The CMS vaccination FAQ is available here.

Contact: Karen Lipson, klipson@leadingageny.org