New York state now requires all health care workers to receive a COVID-19 booster shot within two weeks of becoming eligible. An individual is considered eligible for the booster five months after receiving the second shot in a two-dose regime (either the Moderna or Pfizer vaccine) or two months after receiving the J&J single dose vaccine. Governor Hochul announced this mandate on January 7, and the New York Public Health and Health Planning Council formally adopted the mandate on January 11, citing the importance of the booster to controlling the spread of COVID-19 in healthcare facilities and to limiting staffing shortages in healthcare facilities due to sick and quarantined employees.
The mandate went into effect immediately following its adoption and impacts all personnel working in hospitals, nursing homes, adult care, and other congregate settings as defined in the original regulation. Covered personnel is broadly defined and includes “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.” (10 NYCRR § 2.61.)
The booster mandate allows for some medical exemptions, but, like the state’s initial healthcare worker vaccine mandate announced in August 2021, does not permit religious exemptions. The original healthcare worker vaccine mandate was challenged in federal court based on the religious exemption issue. But on November 4, 2021, the United States Court of Appeals for the Second Circuit upheld the original vaccine mandate, stating that the failure to provide a religious exemption did not violate the employees’ religious freedoms. In its opinion, the Second Circuit clarified that, despite lacking a religious exemption, the original mandate did not violate employees’ rights as it did not preclude an employer from providing a reasonable accommodation for employees with sincerely held religious beliefs if doing so would not impose an undue burden on the employer and would allow the objecting employee to continue working in a capacity consistent with the mandate, that is, without coming into contact with patients or other employees. The Second Circuit’s findings were upheld by the Supreme Court on December 13, 2021, when it rejected the plaintiffs’ request for a stay of the regulations. The same findings will apply to the booster mandate, making it difficult for employees to mount additional legal challenges. Also as with the original vaccine mandate, the booster mandate does not provide any option for testing-out.
While it has not been met with the same level of resistance as the original healthcare worker vaccine mandate, some groups are already pushing back against the booster requirement. One day after the council adopted the booster mandate, 11 counties published a letter urging Governor Hochul to reconsider the new rule. In the letter, they cited severe staffing shortages and the fear that the new mandate would exacerbate what is already a tenuous situation. However, it is unlikely that these objections will gain traction, and the rule is expected to remain in effect for the foreseeable future.
New York was the first state to mandate the COVID-19 booster shot in any manner, but others are quickly following suit. On Wednesday, January 20, New Jersey adopted a similar booster mandate requiring employees of New Jersey hospitals, nursing homes, prisons and jails to receive the booster. California has also adopted a booster mandate for healthcare workers that will go into effect on February 1.
If you have questions on this topic, please contact Jillian McNeil at jmcneil@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.