New York State Health Care Personnel Booster Mandate to Take Effect Feb. 21st

The Department of Health (DOH) released guidance on Jan. 21, 2022 notifying "covered entities" that new regulations had taken effect requiring health care personnel to receive COVID-19 booster vaccinations. The booster mandate will not be enforced until Feb. 21, 2022. It requires personnel to receive "any booster or supplemental dose as recommended by the CDC, absent receipt of a medical exemption." As under the previously implemented vaccination mandate, "covered entities" include:

Hospitals
Nursing homes
Diagnostic and treatment centers
Adult day health care programs
Home care agencies
Hospice programs
Adult care facilities

Programs of All-Inclusive Care for the Elderly are also subject to the mandate, but other Managed Long Term Care programs and fiscal intermediaries under the Consumer Directed Personal Assistance Program are not.

Covered entities are directed to ensure that personnel currently eligible for a booster dose have documentation of compliance with the booster mandate by Feb. 21^st and that personnel not currently eligible receive their booster within 30 days of becoming eligible.

The new guidance links to previously issued Frequently Asked Questions (FAQs), indicating that these FAQs similarly apply to the booster shot mandate. Under the FAQs, the personnel subject to the mandate include "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.'” Contractors must also be vaccinated and boosted if they function as employees or staff, or are under the covered entity's direct control. The following are examples of contractors who are not subject to the vaccination or the booster mandate:

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;
Emergency medical services, 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.

Volunteers who have a formal relationship with the covered entity and who provide regularly scheduled volunteer services must comply with the regulation. Volunteers through the Long Term Care Ombudsman Program are not covered by either mandate.

Like the original vaccination mandate, the State's booster mandate requires providers to have a process in place to review requests for medical and religious exemptions and accommodations. However, in its FAQ document, the State has effectively taken the position that any religious accommodation that would allow unvaccinated personnel to expose other staff or patients would cause the undue hardship of risking the health of patients and other personnel. Under the 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. Federal Equal Employment Opportunity Commission guidance allows employers to deny religious accommodations that would pose an undue hardship.

Under its FAQ on medical exemptions, DOH noted that 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.

LeadingAge NY submitted comments and testified before the Public Health and Health Planning Council on the booster mandate, highlighting the anticipated negative impacts of this new mandate on staffing shortages across the health care delivery system. We will continue to advocate for a more rational approach to vaccination in the context of the staffing crisis.

Nursing homes, certified home health agencies, and hospice providers are also reminded of the impending deadlines for enforcement of the Centers for Medicare and Medicaid Services (CMS) vaccination mandate. Under the CMS QSO, surveyors will begin surveying on the CMS mandate on Jan. 27^th. Providers should take note of the more detailed requirements in the CMS guidance pertaining to documentation of exemptions and vaccination status, additional precautions for unvaccinated staff who have received an exemption or a temporary deferral, and contingency plans for staff who have not completed the primary vaccination series. Members are encouraged to review the QSO attachments applicable to their licenses:

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838