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Health Care: Unvaccinated Healthcare Personnel Must Now Wear Masks During the Flu Season (7/13)

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After prior unsuccessful attempts to require that healthcare provider personnel be vaccinated against the flu, the New York State Department of Health has now finalized a regulation that may indirectly achieve that result. Beginning this upcoming flu season, if certain healthcare personnel are not vaccinated, they must wear masks.

On July 31, 2013, the Department formally adopted its proposed rule that hospital, diagnostic and treatment center, nursing home, home care, and hospice personnel, including students and volunteers, (collectively, "HCP"), wear a mask if not vaccinated against influenza. This requirement will apply to unvaccinated HCP, even those who are not employed by the provider, who "engage in activities such that if they were infected with influenza, they could potentially expose patients or residents to the disease." Accordingly, all affected facilities and providers must now ensure that all unvaccinated HCP wear a surgical or procedure mask "while in areas where patients or residents may be present" during each flu season as determined by the Department. The facility must provide the masks to HCP free of charge.

Affected facilities and providers must also satisfy additional administrative requirements to comply with the new regulation, which are:

  1. determining and documenting which individuals are HCP, under the Department’s definition;
  2. documenting the flu vaccination status of all HCP for each flu season in the individual’s personnel record, which must include the name and address of the individual who ordered or administered the vaccine and the date of vaccination;
  3. upon the Department’s request, reporting the number and percentage of HCP that have been vaccinated against the flu for the current flu season; and
  4. developing and implementing a policy and procedure to ensure compliance, which must include identification of those areas where unvaccinated HCP must wear a mask.

This regulation is now effective. Affected facilities and providers should consider taking the appropriate steps now to ensure that they are prepared to comply this upcoming flu season.

If you have any questions concerning this rule or how it may impact your organization, please contact:


Hermes Fernandez, Esq.
(518) 533-3209

Mark A. Mainello, Esq.
(518) 533-3243

David A. Ruffo, Esq.
(518) 533-3231

Carolyn Shearer, Esq.
(518) 533-3226

Raul A. Tabora, Jr., Esq.
(518) 533-3242

Matthew A. Young, Esq.
(518) 533-3201

Central New York:

Larry P. Malfitano, Esq.
(315) 218-8331

Western New York:

John F. Darling, Esq.
(585) 362-4725

New York City and Long Island:

Raul A. Tabora, Jr., Esq.
(646) 253-2300

John F. McKay, III, Esq.
(516) 267-6312