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New Developments in Health Care Personnel COVID-19 Vaccination Mandates

Health care providers in New York State are facing several new developments in COVID-19 vaccination mandates this week. The Centers for Medicare and Medicaid Services (CMS) issued its long-awaited omnibus health care personnel vaccination regulation on Nov. 5th, while the U.S. Court of Appeals for the Second Circuit issued an opinion on religious exemptions from New York’s health care personnel vaccination mandate on Nov. 4th and the state Department of Health (DOH) released an updated Frequently Asked Questions (FAQ) document on religious exemptions on Nov. 8th. Based on the FAQ, the State believes that providers may comply with both the vaccination mandate and Title VII of the Civil Rights Act (CRA) by removing employees who seek a religious accommodation from any role in which they could potentially expose patients or other personnel to the virus. The Second Circuit's opinion supports that position, at least at this stage in the proceedings. Employers that are covered by neither the CMS rule nor the State vaccination mandate should consider their obligations under the Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) also issued last week and summarized here.

CMS Vaccination Mandate

The CMS vaccination mandate applies to Medicare- and Medicaid-certified provider and supplier types, including, among others, Comprehensive Outpatient Rehabilitation Facilities, Critical Access Hospitals, End-Stage Renal Disease Facilities, Home Health Agencies, Home Infusion Therapy Suppliers, Hospices, Hospitals, Intermediate Care Facilities for Individuals with Intellectual Disabilities, Clinics, Programs of All-Inclusive Care for the Elderly (PACE), and Long Term Care facilities (nursing homes). Assisted living facilities and Medicaid home and community-based services (HCBS) providers are not directly subject to the federal requirement. However, some Medicaid HCBS providers may be subject to the federal requirement by virtue of contracts to provide services to federally certified providers. In any case, assisted living facilities and many HCBS providers are subject to the State's vaccination mandate.

The federal vaccination mandate applies to all current staff and any new staff who provide any care, treatment, or other services for the facility and/or its patients, including employees, licensed practitioners, students, trainees, volunteers, and individuals who provide care, treatment, or other services for the facility and/or its patients under contract or other arrangements. Staff members who work completely remotely and have no contact with other staff or patients are exempt from the requirement.

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. 5th and be fully vaccinated by Jan. 4, 2022. Providers must have policies and procedures in place by Dec. 5th to support compliance. Those procedures must include a process by which staff may request an exemption from the vaccination requirements based on federal law, including exemptions based on medical conditions, disability, or religious belief.

Employers have the flexibility to establish their own processes and procedures for exemption requests. To assist providers, CMS points to the Safer Federal Workforce Task Force’s “request for a religious exception to the COVID-19 vaccination requirement” template as an example. In addition, employers may refer to the Equal Employment Opportunity Commission (EEOC) technical assistance guide to COVID-19 and discrimination laws and its compliance manual on religious discrimination. The CMS FAQs on its vaccination regulation are available here. The FAQs provide that in granting such exemptions or accommodations, employers must develop a process for implementing additional precautions for any staff who are not vaccinated, in order to mitigate the transmission and spread of COVID-19.

Medical Exemptions Under the State and CMS Vaccination Regulations

New York State health care providers had a head start on the CMS vaccination requirements as a result of the State’s regulation, which took effect on Sept. 27th for nursing homes and hospitals and Oct. 7th for home care, hospice, PACE, assisted living, and other providers. Any facility or agency that is in compliance with the State’s vaccination mandate would be in compliance with the federal requirements. However, providers should be mindful of two additional provisions of the CMS regulation:

  • 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 infection prevention measures to mitigate the risk that they might transmit the virus to others.
  • 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."

Religious Exemptions Under the State and CMS Vaccination Regulations

As noted above, CMS requires providers to have a process for receiving requests for religious exemptions and granting accommodations consistent with federal law. However, it does not specify the nature of these processes or the scope of permissible accommodations beyond referencing EEOC guidance. The EEOC requires employers to reasonably accommodate sincerely held religious beliefs unless the accommodation would pose an undue hardship on the employer. New York, in legal arguments and in its recently issued FAQ, has effectively taken the position that any religious accommodation that would allow unvaccinated personnel to expose other staff or patients is unreasonable because it would cause the undue hardship of risking the health of patients and other personnel.

On Nov. 8th, in its new FAQ, the State clarified its position that health care providers may comply with both Title VII of the CRA and the State’s vaccination mandate by removing the objecting employee from any role in which he or she could expose a patient or other personnel to COVID-19. In response to the question “Does this regulation include a religious exemption?”, DOH states:

No, there are no religious exemptions provided for through the regulation. However, covered entities should follow federal, state and local laws and guidance to determine, on a case by case basis, whether and in what circumstances it may be appropriate to provide reasonable accommodations for personnel, who, because of sincerely held religious beliefs, do not get vaccinated against COVID-19. While this regulation does not preclude such reasonable accommodation requests and considerations, covered entities 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. (10 NYCRR Section 2.61(a)(2) defines “personnel” covered by this regulation). Covered entities could consider other reasonable accommodations to eliminate the risk of such exposure.

The U.S. Court of Appeals for the Second Circuit, in We the Patriots v. Hochul and Dr. A. v. Hochul, appears to have accepted that position, at least for purposes of the preliminary proceedings. In its opinion issued on Nov. 4th, the court held that the health care personnel did not meet their burden of demonstrating a likelihood of success on the merits. The court held that it is possible for employers to comply with both Title VII of the CRA and the State vaccination mandate. The court pointed to the State's argument that nothing in the regulation precludes the employers from accommodating religious objectors by giving them telemedicine assignments. The court held that the regulation, “on its face, does not bar an employer from providing an employee with a reasonable accommodation that removes the individual from the scope of the Rule.” However, the court stressed that it is not deciding the case on the merits, but deciding only that the plaintiffs did not satisfy the standard for preliminary relief. It remanded the cases to the district courts for further proceedings.

Members have asked whether the more flexible approach to religious accommodations reflected in the CMS regulation would preempt New York's approach. In particular, CMS’s FAQ document states that its regulation preempts state laws “to the contrary.” However, this statement by CMS was made in the context of a question about state laws that prohibit vaccination mandates, not state laws with more stringent approaches to exemptions. Based on New York’s arguments in the litigation, we believe that the State would take the position that its law does not conflict with the CMS rule. In accordance with the CMS regulation and Title VII of the CRA, the New York regulation would allow providers to receive requests for religious exemptions and grant accommodations, provided that any accommodation that might allow unvaccinated personnel to expose other staff or patients must be denied because it would cause the undue hardship of risking the health of patients and other personnel.

The State’s health care personnel vaccination mandate is still the subject of litigation. However, given the favorable decision by the Second Circuit Court of Appeals, we do not believe that the State will wait until a final decision on the merits to enforce the regulation. The State may offer providers a brief period of forbearance to come into compliance. We will keep members updated on any delay in enforcement.

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