NY approves COVID vaccine mandate for health care workers, removes religious exemption

Georgie Silvarole
New York State Team

A New York State Department of Health board voted unanimously Thursday to implement emergency authorization of a COVID-19 vaccine mandate for all health care workers in the state, while also removing a planned religious exemption as an alternative to vaccination.

Thursday's meeting of the Public Health and Health Planning Council consisted of a discussion and subsequent formal adoption of a regulation first announced by then-Gov. Andrew Cuomo last week

The mandate approved by the council also removed a planned exemption that would have allowed workers to avoid vaccination based on religious considerations. Any religious exemptions previously granted are no longer valid and facilities will not be allowed to include religious exemptions at all, said Vanessa Murphy, a DOH attorney.

"We're not constitutionally required to provide a religious exemption," Murphy said. "You see that with the Measles and the Mumps requirement for health care workers."

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Hospitals and nursing homes must require their employees to be fully-vaccinated against COVID-19, with the first dose for current personnel received by Sept. 27.

All other health-care facilities covered in the provision — including diagnostic and treatment centers, home health agencies, long-term home health care programs, school-based clinics and hospice care programs — must have personnel vaccinated by Oct. 7. 

Under the state's rule-making process, the emergency regulation took effect immediately and will be subject to a 90-day review period. After the review, DOH will have to renew it or allow it to expire.

The definition of "personnel" is broad in the regulation: It includes employees, 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."

As of Aug. 16, 75% of the state's estimated 450,000 hospital workers, 74% of the state's estimated 30,000 adult care facility workers, and 68% of the state's estimated 145,500 nursing home workers have completed their vaccine series, according to a statement from the governor's office. 

What was discussed during the DOH meeting?

Howard Zucker, M.D., the NYS Health Commissioner is pictured as New York Governor Andrew Cuomo discusses the new cases of the Coronavirus in New Rochelle, during a press briefing at the New York Power Authority in White Plains, March 4, 2020.

At the start of the meeting, state Health Commissioner Howard Zucker addressed the members in attendance and credited new Gov. Kathy Hochul for her assistance in fighting the COVID-19 pandemic.

It marked Zucker's first public comments since Cuomo resigned Monday amid myriad scandal, including controversy surrounding the state's handling of COVID-19 data regarding nursing homes, which has drawn attention from federal prosecutors in Brooklyn.

On Wednesday, Hochul's office included the CDC's COVID-19 death count for New York in its daily data brief in a show of transparency. The CDC's death count is broader than the state's count, attributing about 12,000 deaths the state's count omits.

"I am thrilled that Gov. Kathy Hochul has taken the helm in the state," Zucker said. "Her leadership allowing me and all of DOH to get the data out is refreshing and her commitment, as she has said, to the transparency is revitalizing."

How will the mandate be enforced?

Syringes are prepared in advance at the state-run COVID-19 vaccination site at the SUNY Potsdam campus in St. Lawrence County on Thursday, March 11, 2021.

Much of the meeting was spent on answering board members questions regarding the scope of professions and roles covered by the vaccine mandate.

Harvey Lawrence, a committee member and president and CEO of BMS Family Health and Wellness Centers in Brooklyn, expressed concern about universal implementation across the state.

"Really, across the board, anyone that's having a touch point on a patient — including a nurse, PAs, NPs — if they're practicing in a private setting or an institutional setting, there should be compliance with this regulation," Lawrence said. "I am not really clear exactly how that's going to be enforced."

Lawrence asked for clarity on execution of the mandate, expressing concern that health care facilities might see an "out-migration" of personnel if there are opportunities elsewhere for people to work that will not require the vaccine.

"This is a mandate," Lawrence said. "What are the penalties and what's the enforcement requirements?"

DOH leaders had vague answers to questions regarding enforcement and punishment for non-compliance. Administrators of hospitals, diagnostic centers, home care agencies, etc. will be responsible for ensuring their personnel are vaccinated, Murphy said.

"I think in terms of compliance and enforcement, it's at the facility level. We've built in provisions to require covered entities upon request to report information to us," Murphy said. "I don't know if we've worked out the details of how we would audit or ensure compliance."

Alternatives, like masking and weekly surveillance testing for individuals who have not received a COVID-19 shot, were not discussed in the meeting. 

Al Cardillo, CEO of the Home Care Association of New York State, spoke during the meeting's public comment period. He expressed concern that a mandate would exacerbate an already-prominent worker shortage that has detrimental effects on patients in need of care at their homes. 

"It has been a long-standing, decades-long problem within the state because the need has always exceeded the capacity," Cardillo said. "There are many providers, still with a substantial portion of the workforce, very reticent to be vaccinated. Much of our workforce comes from minority communities and other communities with cultural considerations where there's resistance to vaccination."

He asked that the state DOH consider assisting administrators in the process of implementing the vaccine mandate. Flexibility, particularly in regards to the deadline for the requirement, would be greatly appreciated, he said.

"We really encourage you to consider the shortage, in the emergency situation that we have, and to consider steps that would at least provide support for this area to be able to recruit and support the workforce during this period," Cardillo said. "We would ask you to consider a reasonable and workable timeframe for implementing these provisions. I think if we work together, we can probably get there and get there in a very harmonious way."

GSILVAROLE@Gannett.com