HOME CARE PERSONNEL VACCINE MANDATE
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Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
HOME CARE PERSONNEL
VACCINE MANDATE
Emina Poricanin, Esq.
Founder, Poricanin Law P.C.
E@poricanin.com
315.269.1125
This presentation is being provided for informational purposes and should not be construed as legal advice. No statements on or during this presentation should be interpreted as legal advice or as creating
attorney-client relationship or privilege. Please consult your counsel for any legal advice.
New York State Association of Health Care Providers (HCP)
Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Overview of Today’s Presentation
● New York’s Emergency Regulation
○ Review of requirements
○ Exceptions
○ Timelines
○ Practical suggestions
● Biden’s “Path out of the Pandemic” Plan
○ Interplay with New York’s Vaccine Mandate
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New York State Association of Health Care Providers (HCP)
Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Overview of Emergency Regulation,
“Prevention of COVID-19
Transmission by Covered Entities”
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Regulation Specifics
○ Codified in 10 NYCRR 2.61, Title 10 Part 2.61
○ Adopted by the Public Health and Health Planning Council
○ Effective August 26, 2021
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
The Mandate
● Covered entities shall continuously require personnel to be fully
vaccinated against COVID-19, with the first dose for current
personnel received by September 27, 2021 for general hospitals
and nursing homes, and by October 7, 2021 for all other covered
entities absent receipt of an exemption.
● Thus, the mandate is that covered home care workers must have
the first dose of the vaccine by October 7, and thereafter comply
with vaccination mandates, absent an exemption.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Key Definitions: What Entities are Covered?
“Covered entities” for the purposes of this regulation include:
(i) any facility or institution included in the definition of “hospital” in section 2801 of the Public
Health Law, including but not limited to general hospitals, nursing homes, and diagnostic and treatment
centers;
(ii) any agency established pursuant to Article 36 of the Public Health Law, including
but not limited to certified home health agencies, long term home health care programs, acquired immune
deficiency syndrome (AIDS) home care programs, licensed home care service agencies, and limited
licensed home care service agencies;
(iii) hospices as defined in section 4002 of the Public Health Law; and
(iv) adult care facility under the Department’s regulatory authority, as set forth in Article 7 of
the Social Services Law.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Key Definitions: Which Workers are Covered?
Under the regulation, “personnel” means “all persons employed or affiliated with
a covered entity, whether paid or unpaid, including but not limited to 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.”
Refer to 10 NYCRR 2.59 and related guidance
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Key Definitions: “Fully Vaccinated”
“Fully vaccinated,” for the purposes of this regulation, “shall be determined by the Department in accordance
with applicable federal guidelines and recommendations.”
Unless otherwise specified by the Department, documentation of vaccination must include the manufacturer,
lot number(s), date(s) of vaccination; and vaccinator or vaccine clinic site, in one of the following formats:
(i) record prepared and signed by the licensed health practitioner who administered the vaccine, which may
include a CDC COVID-19 vaccine card;
(ii) an official record from one of the following, which may be accepted as documentation of immunization
without a health practitioner’s signature: a foreign nation, NYS Countermeasure Data Management System
(CDMS), the NYS Immunization Information System (NYSIIS), City Immunization Registry (CIR), a
Department-recognized immunization registry of another state, or an electronic health record system; or
(iii) any other documentation determined acceptable by the Department.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Exemptions – Medical Exemption
“If any licensed physician or certified nurse practitioner certifies that immunization with COVID-19
vaccine is detrimental to the health of member of a covered entity’s personnel, based upon a pre-
existing health condition, the requirements of this section relating to COVID-19 immunization shall be
inapplicable only until such immunization is found no longer to be detrimental to such personnel
member’s health. The nature and duration of the medical exemption must be stated in the personnel
employment medical record, or other appropriate record, and must be in accordance with generally
accepted medical standards (e.g., the recommendations of the Advisory Committee on Immunization
Practices of the U.S. Department of Health and Human Services), and any reasonable accommodation
may be granted and must likewise be documented in such record...For all covered entities,
documentation must occur continuously, as needed, following the initial dates for compliance specified
herein, including documentation of any reasonable accommodation therefor.”
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Exemptions – Religious Exemption
● An exemption on the basis of religion was initially proposed in the proposed regulations, but one day before the
regulation was adopted, the Department of Health decided to revoke this specific exemption.
● Thus, currently, the Department does not allow covered providers to utilize this exemption to avoid vaccinations. This is
consistent with other Department mandated vaccinations, such as the MMR.
● However, employers have independent obligations under Title VII and NYS Human Rights Law and NYC Human Rights
Law to engage in the interactive process with employees who request an accommodation or an exception from the
ordinary workplace rules and procedures (even where those rules and procedures are based on a regulation such as
this). Accordingly, per federal and State laws, employers must consider any request of an employee who objects to the
vaccination mandate on the basis of sincerely held religious beliefs.
● However, in any such analysis, the employer is only required to and must grant a “reasonable” accommodation, to the
extent the granting of such accommodation will not be an undue burden to the employer. Due to the Department’s
regulation, granting an exemption whereby the employee (such as an aide) is working without vaccination and without a
medical exemption is not a “reasonable” accommodation, because it would require the employer/provider to violate the
Department’s regulation. Thus, while covered employers are required to engage in the “interactive process” with
employees who seek an exemption from the vaccination mandate on the basis of their religious beliefs, the end result of
such process cannot be the allowance of a covered healthcare employee to work in any capacity that would result in that
employee “potentially” exposing another employee or patient to COVID.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
What the Regulation does not Do
● Allow employees to test out of the mandate
● Allow antibodies to serve as a substitute for the mandate
● Allow employees to receive a religious exemption
● Allow employees to wear PPE in lieu of becoming vaccinated
● Create a “staffing shortage” exception
● Provide a template medical exemption form (although DOH may issue one as a
guideline)
● Establishes a clear sunset date (i.e., date by which it will expire). A similar
medical exemption form is currently available for flu vaccine mandates
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Recordkeeping
Documentation of an employee’s vaccination “shall be made in personnel records or other
appropriate records in accordance with applicable privacy laws, except as set forth in subdivision
(d) of this section.”
Upon the request of the Department, covered entities must report and submit documentation, in a
manner and format determined by the Department, for the following:
(1) the number and percentage of personnel that have been vaccinated against COVID-19;
(2) the number and percentage of personnel for which medical exemptions have been granted;
(3) the total number of covered personnel.
Covered entities shall develop and implement a policy and procedure to ensure compliance with
the provisions of this section and submit such documents to the Department upon request.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Biden’s Proposal for Large Employers
● On September 9, 2021, President Biden announced a new COVID-19 plan, aimed to control
the spread of the Delta variant and increase vaccination rates nationwide.
● As part of this new plan, OSHA is expected to issue an Emergency Temporary Standard
requiring all employers with 100 or more employees to:
○ Ensure that their workforce is fully vaccinated; or
○ Require unvaccinated workers to produce negative COVID-19 test results at least once per week before coming
to work.
● Employers with 100 or more employees will also be required to provide workers with paid time
off for the time that it takes to get vaccinated and/or to recover from vaccine side effects.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Biden’s Plan for Healthcare Employers
● Also on September 9, the Centers for Medicare & Medicaid Services (CMS), in collaboration with the
Centers for Disease Control and Prevention (CDC), announced that emergency regulations requiring
vaccinations for nursing home workers will be expanded to include hospitals, dialysis facilities,
ambulatory surgical settings, and home health agencies, among others, as a condition for participating in
the Medicare and Medicaid programs.
● CMS is developing an Interim Final Rule with Comment Period that will be issued in October. CMS
expects certified Medicare and Medicaid facilities to act in the best interest of patients and staff by
complying with new COVID-19 vaccination requirements. Health care workers employed in these facilities
who are not currently vaccinated are urged to begin the process immediately. Facilities are urged to use
all available resources to support employee vaccinations, including employee education and clinics, as
they work to meet new federal requirements.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
National New York
Vaccination Plan Regulation
• Will allow employees to test • Does NOT allow testing out of
out mandate
• Will recognize religious • Does NOT recognize religious
exemption exemption
• Paid time off for vaccination • NYS already requires paid time
off to be granted for vaccination
• Paid time off to be granted for
sickness caused by side- • NYS does not require this
effects of vaccine
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Disregarding the Regulation’s Mandate
● Not recommended.
○ OMIG recoupment
○ DOH licensure proceedings
○ Adverse consequences in LHCSA RFO
○ More likely to be liable for COVID-related deaths of patients
○ It may be deemed gross negligence if an employee dies after being infected
at work. Workers’ compensation does not bar gross negligence claims
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Employment Law Considerations
● Not required to terminate employee who refuses to vaccinate, however employees out of compliance
cannot be scheduled to work on or after October 7, 2021
● Unemployment insurance will not be available to any employee whose employment is terminated or who
loses work hours due to refusal to vaccinate per the regulation, but be sure to clearly document why the
employee is not working.
● Vaccination status issues are private medical information. Vaccination cards and any information related
to medical exemptions must be maintained in the employee’s separate medical file.
● Employers can provide information to employees to enable and assist employees in obtaining a medical
exemption card. Employers can also ask questions about vaccination exemption documentation that
seems insufficient.
● Employers may pay various benefits and wages to incentivize vaccination. Such compensation would
likely be deemed taxable, a wage parity benefit and, depending on the form of payment, might have to be
considered as part of the “regular rate” for purposes of calculating the overtime rate correctly for non-
exempt employees.
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
What to do now?
● Figure out who is/is not vaccinated.
● Get the word out to your aides, and put a plan in place to respond to questions.
● Set a deadline by which employees need to provide documentation, and this deadline
should not be October 7.
● You will lose some percentage of your workforce. The sooner you know how many, the
better prepared you are to respond. Speak with plans and community partners about
transfers of patients that you will not be able to service.
● Review and revise, as necessary, your discharge plan.
● Figure out what to do with office staff who refuse to vaccinate.
● Train your DPS on how to evaluate medical exemption requests.
● Discuss with HR and DPS issues related to religious accommodations.
● Recruit and train more caregivers, wherever they might be.
● Incentivize vaccination with pay and other fringe benefits and/or only hire vaccinated (or
non-vaccinated with acceptable medical exemptions).
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New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Flex for Checks
A National Minority Health Association Project
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Agenda
• COVID-19 and Home Care
• Introduction and Overview
• Program Highlights
• Frequently Asked Questions
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Introduction
• Flex for Checks is a community- • By partnering with reputable
based program, developed as organizations such as Accent Care
part of an $11.1 million grant from or the NAHC, we seek to prioritize
HRSA. vaccination in the home care
• We seek to mobilize homecare worker population first
workers to increase vaccination • We call it Flex for Checks because
confidence in underserved once you “flex” for your shot, you
communities in the fight of COVID- can get a ‘check’ and you can
19 ‘check off’ all the things you can
do again✅
We are committed to getting vaccinations into the arms of
our community members.
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Program Overview
• We intend to accomplish this by
paying community members $50
per shot.
• The worker and the agency who
supported them will each earn
an additional $25 per shot.
• By delivering this message
through trusted home care
workers, we will accomplish the
additional goal of educating
consumers and the workers
themselves about the benefits of
COVID-19 vaccination.
The FFC program hopes to distribute more than $7,000,000 in rewards!
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Program Overview
Rewards Paid by Visa® gift cards to the vaccine
recipient after they provide verification of each shot.
Verification. Completed by uploading a picture of
vaccination record card and filling in the details of
where, when, and which vaccine was received.
Timing. The grant started on June 1, 2021, and runs
through November 30, 2021, or until we distribute all
available funds.
Materials Provided
• Worker Registration • Collateral Materials • Public Relations
Support • Video Engagement
• Video Training Platform
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Highlights
Our mandate, under the grant, is to focus
on underserved populations in 12 states:
• California • North • Texas
• Delaware Carolina • Vermont
• Florida • New York • Virginia
• Georgia • South • West
• Missouri Carolina Virginia
However, participation is not limited to
these states. Any individual in any state
can qualify for Flex for Checks rewards.
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Frequently Asked Questions
What are the responsibilities of the What are the next steps for the agency
agency? once we sign up?
1. Register and obtain a link and QR • Once you register your agency, you
code for your agency. will receive a confirmation email. The
NMHA will also send out a
2. Provide the link and QR code, along
with instructions (provided) to your • Participation Kit that includes all the
workers. information you need to get started.
3. Collect rewards for each shot
received by any community
member registered through one of
your workers.
New York State Association of Health Care Providers (HCP)Community Health Care Services Foundation, Inc. (CHC) 2021 9/13/2021
Frequently Asked Questions
How much are the rewards? How long does it take to receive
• Any individual can receive a rewards?
reward of $50 for each • Verify your vaccinations by
vaccination shot you receive after uploading a picture of your
you register. vaccination card and entering the
• Only verifications dated after the details
date you register will generate a • The NMHA will send an email with
reward. However, you can register an e-gift card for each shot.
and then receive a shot later that • Visa® gift cards usually arrive
same day. electronically within a few days,
but it may take longer depending
on the number of reward requests
we receive at one time.
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