New York State Department of Health Extends Flexibility with COVID-19 Vaccination Protocols to Ensure Staffing Stability

October 12, 2021

By: Gabriel S. Oberfield, Esq., M.S.J., Mark A. Mainello, and Raul A. Tabora, Jr.

Health care personnel who missed the dual deadlines of Sept. 27 and Oct. 7 to receive the first dose of the COVID-19 vaccine may return to work immediately upon initiating vaccination despite not being fully vaccinated. New guidance in this area affords a flexible approach to ensuring that health care workers remain on track to full vaccination, while simultaneously strengthening the health care system and ensuring that those receiving care are kept safe.

Cognizant of the severe staffing shortages affecting skilled nursing facilities and other healthcare delivery sites in New York State, the State’s Department of Health (DOH) extended key flexibilities in operationalizing former Gov. Andrew Cuomo’s vaccination mandate as issued on Aug. 26, 2021, via emergency regulation. 

Workplace Entry Permitted if Vaccine Sequence Commenced: On Oct. 8, 2021, Bond attorneys learned directly from DOH that any person in a role affected by the standard and that has begun a sequence of vaccination (e.g., received a first dose) may be hired or return from a furlough so long as the organization where that individual works verifies that the individual completes the vaccination sequence (e.g., two doses where warranted) and the organization maintains appropriate documentation of such vaccination in one of the required formats. It is expected this may alleviate some of the staffing challenges employers have reported as exacerbated by the mandate. 

Applies to Furloughed and New Personnel: Specifically, new personnel who join an organization can commence work immediately after receiving their first dose, provided that the personnel become fully vaccinated. According to the DOH, because the emergency standard dictates that covered entities must continuously require personnel to be fully vaccinated against COVID-19, it is the employer’s responsibility to ensure the new employee completes the vaccination sequence, and that the employer maintain documentation of such vaccination.  Also, per the Department, existing personnel who did not receive their first dose by the required date and who were furloughed can return to work immediately following receipt of their first dose, subject to the same expectation that they complete their vaccination course, and the employer maintains documentation of such.

Breadth Across Provider Types: This policy applies to all entities that fall under the emergency regulation, and complements Governor Kathy Hochul’s Executive Order 4 of Sept. 27, 2021, that liberalizes sources for staffing and points resources toward addressing staffing challenges.

The DOH emergency regulation, as further explicated in a frequently asked questions document subsequently issued by DOH, staff in general hospitals and skilled nursing facilities must have received COVID-19 vaccination on or before Sept. 27, 2021, to continue in their roles, and by Oct. 7, 2021, in other settings covered by the standard (which hales in a breadth of facility types regulated under Articles 28, 36 and 40).

Resources at Bond: It is expected that New York State and DOH will issue additional information and guidance on these issues. In the meantime, if you have questions regarding these or other reporting requirements, please contact Gabriel S. Oberfield, Mark A. Mainello, Raul A. Tabora, any of the attorneys in our Health Care practice, or the attorney in the firm with whom you are regularly in contact.