Tag: coronavirus

New York Healthcare Worker Vaccination Mandate

New York Healthcare Worker Vaccination Mandate

The New York State Department of Health has issued emergency temporary regulations requiring healthcare workers in various settings to receive the COVID-19 vaccine. The healthcare worker vaccination mandate includes most employees of hospitals and nursing homes. Employees and other personnel of some additional healthcare facilities and programs are also subject to the mandate. Covered workers who don’t become vaccinated in time could lose their positions.

Given the emergency nature of the regulations, they are only in effect for 90 days. They will expire in late November 2021 unless extended or adopted as permanent regulations.

Covered Entities

The New York healthcare worker vaccination mandate applies to personnel working for all of the following:

  • Hospitals
  • Nursing Homes
  • Diagnostic and Treatment Centers
  • Home Health Agencies
  • Long Term Home Health Care Programs
  • AIDS Home Care Programs
  • Licensed Home Care Services Agencies
  • Hospices
  • Adult Care Facilities

Most of the above terms are more specifically defined by law or regulations.

Generally, private “doctor’s offices” are not directly subject to the vaccination mandate. However, given the array of practice arrangements, providers should carefully consider whether they are covered.

Covered Personnel

The vaccine mandate extends beyond employees of these healthcare providers.

It applies to “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.”

This definition is extensive. It may allow healthcare companies some flexibility in who must receive the vaccine. However, it would seem to cover most people (other than patients/visitors) who would come into contact with anyone else.

Vaccination Requirement

Covered personnel must eventually become fully vaccinated to continue to work/participate in their healthcare positions. They must at least obtain a first dose by September 27, 2021, if they work in hospitals, or by October 7, 2021, if they work in any other covered entity.

Healthcare entities must obtain proof of documentation for each worker and retain a copy in personnel or similar files. Employers must comply with privacy requirements. For example, medical documentation must be maintained separately from general employment records under the Americans with Disabilities Act.

Exemptions

The Department of Health regulations only permit a medical exception to the healthcare worker vaccination mandate. The Commissioner of Health had previously suggested a religious exemption would be available, but that was dropped.

A covered entity may excuse personnel from the vaccine requirement “if any licensed physician or certified nurse practitioner certifies that immunization with COVID-19 vaccine is detrimental to the health” of a person “based upon a pre-existing health condition.”

Healthcare companies may make any “reasonable accommodation” for workers with a medical exemption. Any exemption or accommodation must be documented in personnel records, again in compliance with applicable privacy laws.

The DOH regulations do not necessarily require companies to make exemptions or accommodations in every instance. They also don’t specify which accommodations are reasonable. These questions must be analyzed on a case-by-case basis.

Compliance

The regulations add requirements that covered entities must provide proof of documentation and exemptions to the Department of Health upon request. The regulations do not specify penalties for non-compliance. However, fines or potential loss of license may be possible for violations.

 

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GINA COVID-19

GINA and COVID-19

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from collecting and discriminating based on employees’ genetic information. Even though most businesses aren’t conducting genetic tests on their workers, GINA has widespread workplace implications related to the COVID-19 pandemic. As companies evaluate how to move forward in an era of renewed health concerns despite the availability of vaccines, it is critical to be familiar with how GINA and COVID-19 interact.

What’s GINA?

GINA is a federal law that applies to U.S. employers with at least 15 employees. It generally prohibits the use of genetic information in making employment decisions. The law also restricts employers from requesting, requiring, or purchasing genetic information about applicants and employees.

Many overlook GINA, given its emphasis on “genetic information.” Yes, that includes actual genetic test results, for example. But, more significantly, it broadly includes employees’ family medical history.

Specifically, “genetic information” includes “the manifestation of disease or disorder in family members of the individual.”

Under GINA, “family members” include:

(1) A person who is a dependent of that individual as the result of marriage, birth, adoption, or placement for adoption; or

(2) A first-degree, second-degree, third-degree, or fourth-degree relative of the individual, or of a dependent of the individual.

Collectively, that means that an employee’s “genetic information” includes medical information about people who aren’t even related to the employee by blood. In other words, it doesn’t matter whether the employee shares any genes with the “family member.”

For more on GINA generally, click here.

COVID-19 Meets GINA

GINA limits what employers can ask about employees’ family members’ medical conditions, including COVID-19 positivity and symptoms.

Asking About Family Member Health Conditions

If your business is covered by GINA (15 or more employees), then you shouldn’t ask specifically if any of your employees’ family members have COVID-19. However, you can more generally ask whether an employee has been in close contact with anyone who tested positive or has exhibited symptoms. As the EEOC notes, asking only about contact with family members is unduly limited anyway as an inquiry about the risk of COVID-19 exposure.

Vaccine Mandate

GINA does not prevent employers from requiring their employees to receive the COVID-19 vaccine. However, if an employer provides vaccines to employees, the pre-vaccination screening cannot ask for information about family medical history.

Incentivizing Vaccination

The EEOC has explained that GINA does not prevent employers from offering an incentive to employees who prove that they or their family members have received a COVID-19 vaccine. According to the EEOC, “the fact that someone received a vaccination is not information about the manifestation of a disease or disorder in a family member.”

GINA could apply, however, if an employer asks questions about a family member’s medical situation in connection with a vaccination inquiry. For example, asking “why” an employee’s family member is not vaccinated could solicit medical information.

Likewise, there are GINA implications when an employer offers to provide vaccines to family members of employees. The required screening questions would inquire into information that qualifies as the employee’s family medical history. GINA would prohibit incentivizing the disclosure of this information to the employer. But if there is no incentive or requirement (from the employer) for the family member to receive the vaccination, then the employer can provide the vaccine as long as it “ensure(s) that all medical information obtained from family members during the screening process is only used for the purpose of providing the vaccination, is kept confidential, and is not provided to any managers, supervisors, or others who make employment decisions for the employees.”

Not Just GINA

Remember that GINA is far from the only law employers must heed regarding COVID-19. The Americans with Disabilities Act and similar state laws establish restrictions related to employee’s personal medical conditions. Typically, the laws don’t prohibit inquiries and mandates regarding COVID-19. But they may at least dictate parameters you should follow.

 

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Airborne Infectious Disease Exposure Prevention Plans

NYS Issues Model Airborne Infectious Disease Exposure Prevention Plans Under HERO Act

The New York Health and Essential Rights Act (NY HERO Act) requires employers to put plans in place to protect workers in the event of future infectious disease outbreaks. Although motivated by the COVID-19 pandemic, the plans are not specific to COVID. In fact, the State’s model airborne infectious disease exposure prevention plans were released on July 6, 2021–after the COVID-19 state of emergency had been lifted. Thus, while the law requires employers to adopt plans, the plans themselves will only take “effect” in the event of a future outbreak of an airborne infectious disease.

For more on the NY HERO Act generally, read:

New York HERO Act Goes Far Beyond COVID

NY HERO Act Amendments Reduce Employer Burdens

Employer Obligation

All private sector (non-government) employers in New York State must adopt an airborne infectious disease exposure prevention plan by August 5, 2021.

Employers must provide a copy of their plan to all employees within 30 days after adopting the plan. After that, all new employees must receive a copy of the plan with other new-hire paperwork at the beginning of employment.

As the basis for meeting the plan requirement, employers must review the “Airborne Infectious Disease Exposure Prevention Standard” and the general and industry-specific template plans.

Airborne Infectious Disease Exposure Prevention Standard

The New York Airborne Infectious Disease Exposure Prevention Standard applies to private employers with worksites located within the state. It only applies when the NYS Commissioner of Health has designated an airborne infectious agent or disease as “a highly contagious communicable disease that presents a serious risk of harm to the public health.” This threshold generally will not include coverage of seasonal diseases, such as the flu.

The Standard addresses two primary components:

  • Exposure Prevention Plan
  • Exposure Controls

It also discusses relevant statutory anti-retaliation protections.

Exposure Prevention Plan

Each covered employer must establish a written airborne infectious disease prevention plan. Companies can either adopt the State’s model plan for their industry or create their own plan containing all necessary elements. However, deviating from the model plan requires agreement with any union in place or “meaningful participation” of employees if there is no union.

Employers must review and update their plan as necessary, including to reflect new or modified employee assignments related to safety compliance.

A notable new requirement under the DOL’s standard compels employers to verbally review the plan (and related employee rights) with all employees. Although the wording is ambiguous, it appears this may not have to be done unless/until there is an airborne infectious disease that has been designated as presenting a serious risk of harm to public health. That designation also generally “activates” the pre-adopted airborne infectious disease exposure prevention plan.

Exposure Controls

A company’s plan must address specific categories of exposure controls. Most of these elements became commonplace during the COVID-19 pandemic, including health screening, face coverings, physical distancing, hand hygiene, cleaning and disinfection, and personal protective equipment (PPE).

The DOL Standard includes a requirement that employers must provide recommended PPE (such as face coverings) to employees during outbreaks of airborne infectious diseases.

Model Airborne Infectious Disease Exposure Prevention Plan

The Department of Labor’s model Airborne Infectious Disease Exposure Prevention Plan is reminiscent of the Department of Health’s safety plan templates from early in the coronavirus crisis. It takes the form of a largely complete document with space for employers to add various company-specific details.

In addition to the general model plan, there are industry-specific templates for:

The industry templates do not vary significantly from the general plan. The primary differences relate to the specific listing of “advanced controls during an outbreak.”

Introduction

The model plans begin with a general overview of their purpose. The introductory language notes that the plan will only be in effect when the New York State Commissioner of Health designates an airborne infectious disease as a highly contagious communicable disease that presents a serious risk of harm to the public health.

The introduction also states the applicable broad definition of “employees,” which includes even independent contractors.

Responsibilities

The “Responsibilities” section of the plan provides space for the company to identify itself, its covered worksites, and the supervisory employees who will enforce compliance with the plan.

Exposure Controls During a Designated Outbreak

This section contains most of the operative provisions of the airborne infectious disease exposure prevention plan. It is further divided into two sub-sections labeled “minimum controls” and “advanced controls.”

“Minimum Controls During an Outbreak” fall into these categories:

  1. General Awareness
  2. “Stay at Home Policy”
  3. Health Screening
  4. Face Coverings
  5. Physical Distancing
  6. Hand Hygiene
  7. Cleaning and Disinfection
  8. “Respiratory Etiquette”
  9. Special Accommodations for Individuals with Added Risk Factors

“Advanced Controls During an Outbreak” include the following:

  • Elimination (of risky activities)
  • Engineering Controls, such as ventilation, disinfection systems, barriers, and premises layout
  • Administrative Controls
  • Personal Protective Equipment

Some of these sub-component categories include space for the company to specify which controls it will use.

This section concludes with a statement that the company will obtain, store, and maintain the selected controls “so that they are ready for immediate use in the event of an infectious disease outbreak.” Though the plan itself would not take effect until there is such an outbreak, it seems employers must remain prepared at all times.

Housekeeping During a Designated Outbreak

This section addresses the basic cleaning components of preventing disease spread. In essence, it notes that high-touch objects and surfaces will be cleaned more often during an outbreak than lower-touch surfaces. And employers may need to make changes to regular cleaning schedules and procedures.

Infection Response During a Designated Outbreak

This brief section of the plan directs employers to have suspected infected people leave the workplace and follow government guidance in contacting impacted individuals.

Training and Information During a Designated Outbreak

This section seems to require employers to train employees on related issues both independent of and in the event of an outbreak of an airborne infectious disease.

As a general matter, employees must be trained on:

  • Existence and location of the Plan
  • Infectious disease Standard
  • Employer policies
  • Employee rights under the HERO Act

Additional training on all aspects of the airborne infectious disease exposure prevention plan is necessary in the event of an outbreak.

The model plan provides that the training will be “appropriate in content and vocabulary to your [i.e., employees’] educational level, literacy, and preferred language.”

Plan Evaluations During a Designated Outbreak

This plan section indicates that “the employer will review and revise the plan periodically, upon activation of the plan, and as often as needed to keep up-to-date with current requirements.” It then includes a blank table to fill in with any changes.

Retaliation Protections and Reporting of Any Violations

The model plan concludes with a statement prohibiting retaliation against an employee for exercising their rights under the plan. It also provides basic information about reporting violations.

What Your Company Must Do

First, you must have an airborne infectious disease exposure prevention plan in place by August 5, 2021. Then, you must post it in each worksite and distribute it to employees. If you have one, you must include the plan in your employee handbook.

According to the model plans, an employer would need to provide training to employees. However, this is not a statutory obligation. So, it seems the Department of Labor has found a way to mandate training on its own. Of course, any employer can forego the model plans. And the Airborne Infectious Disease Exposure Prevention Standard arguably does not require a training component until an outbreak exists. However, deviating from the model plans would necessitate negotiation with unions, if applicable, or, if not, the nebulous “meaningful participation” of employees.

Employers considering creating their own plan rather than adopting the relevant model plan should consult experienced labor and employment counsel.