Author: Anthony Troia

By orders issued shortly after 5:00 pm today, the Second Circuit vacated the Statewide order of federal Justice Hurd of the United States District Court for the Northern District of New York, which had established the right of providers to grant religious exemptions.

As we had reported, earlier this month, Judge Hurd issued a Statewide injunction, ordering healthcare providers to consider and, where appropriate, grant religious exemptions from the NYS healthcare worker vaccination mandate to employees.  Under Judge Hurd’s order, covered providers were allowed to continue employing home care workers whose sincerely held religious beliefs prevented them from complying with the State’s healthcare worker vaccination mandate. However, as a result of today’s Second Circuit’s vacatur of Judge Hurd’s decision, the Department of Health may proceed to enforce the vaccine mandate against healthcare workers as the vaccination mandate was originally written. The State issued the healthcare worker COVID vaccine regulation, and the regulation did not allow providers to consider and grant religious exemptions to healthcare workers. It was only because of litigation and Justice Hurd’s order that agencies were permitted to continue employing aides under a religious exemption. Again, with today’s Second Circuit order, covered home care providers are expected to comply with 10 NYCRR 2.61 to the full extent, and Section 2.61 only allows providers to grant medical (not religious) exemptions from the State mandate for employees of LHCSAs and other covered providers.

Employees of home care agencies who are currently working under the religious exemption must immediately be vaccinated or inactivated. It is not clear how quickly the Department of Health will move to enforce Section 2.61, but as a result of today’s Second Circuit decision, workers in the field who are working under a religious exemption basis are out of compliance. This means that their employers, the LHCSAs and other covered healthcare providers who employ those workers, are also out of compliance.

The litigation regarding the religious exemption will continue, but there is no longer a Statewide injunction in place allowing providers to continue providing the religious exemption. We will update you on further developments in the litigation.

Full opinions from the Second Circuit on today’s decisions will follow shortly and we will report on that when the opinions are published.

Utica-based federal district court Judge Hurd has ruled in favor of plaintiffs, a non-profit group and individual healthcare workers that had sued the State, challenging the Department of Health’s vaccination mandate regulation insofar as the regulation prohibits covered healthcare providers from considering religious exemption requests from their employees. In relevant part, the Court’s ruling states:

“The question presented by this case is not whether plaintiffs and other individuals are entitled to a religious exemption from the State’s workplace vaccination requirement. Instead, the question is whether the State’s summary imposition of § 2.61 [the DOH’s vaccination mandate regulation] conflicts with plaintiffs’ and other individuals’ federally protected right to seek a religious accommodation from their individual employers…

Therefore, it is ORDERED that…

2. Plaintiffs’ motion for a preliminary injunction is GRANTED;

3. Defendants, their officers, agents, employees, attorneys and successors in office, and all other persons in active concert or participation with them, are preliminarily ENJOINED from enforcing, threatening to enforce, attempting to enforce, or otherwise requiring compliance with § 2.61 such that:

(a) Section 2.61 is suspended in operation to the extent that the Department of Health is barred from enforcing any requirement that employers deny religious exemptions from COVID-19 vaccination or that they revoke any exemptions employers already granted before § 2.61 issued;

(b) The Department of Health is barred from interfering in any way with the granting of religious exemptions from COVID-19 vaccination going forward, or with the operation of exemptions already granted; and

(c) The Department of Health is barred from taking any action, disciplinary or otherwise, against the licensure, certification, residency, admitting privileges or other professional status or qualification of any of the plaintiffs on account of their seeking or having obtained a religious exemption from mandatory COVID-19 vaccination.”

Judge Hurd acknowledged that his decision is ripe for an appeal and, based on Governor Hochul’s actions over the last several days, the State is likely to file an appeal of this decision to the Second Circuit Court of Appeals. In the meantime, for employers that have not yet made a decision on any religious exemption requests, the court’s decision today supports those employers proceeding to either grant or deny religious exemption requests from employees.

For employers that have granted religious exemptions to employees who have demonstrated that their sincerely held religious beliefs prevent them from complying with the Department’s vaccination mandate, those exemptions can continue to stay in effect. Indeed, to the extent that the Second Circuit rules in favor of the healthcare workers who have brought these legal challenges, then any religious exemptions that have been granted will become permanent for those employees.  But to the extent that the Second Circuit agrees with the Department of Health, then any religious exemptions that have been granted thus far will, effectively, be void. Employers that have significantly relied on the religious exemption to continue providing home care services should consider the impact of such a decision on their operations because they could be effectively stripped of a large portion of their workforce overnight, depending on how the decision is written.

If you have any questions about the vaccination mandate or the topic of this alert, please don’t hesitate to reach out.

In response to the healthcare workforce shortage that has been made all the worse by the vaccination mandate, New York Governor Hochul has signed an Executive Order that, in part, expands the scope of practice for New York healthcare professionals and allows some providers to engage professionals from other states and un-registered but licensed New York nurses and LPNs. Here, we discuss the key elements of the EO, as relevant to home care.

As a preliminary matter, the EO is generally geared towards alleviating the hospital and nursing home staffing shortages, not home care. Perhaps because the deadline for vaccinating hospital and nursing home workers was September 27, the EO’s primary beneficiaries are hospitals and nursing homes. In anticipation of the October 7 deadline for home care’s own vaccination mandate, it will be critically important for the Governor to adopt measures (such as a new EO) that will alleviate LHCSA’s workforce shortages.

The Governor’s EO establishes the following, as relevant to home care providers:

1.   Registered nurses, license practical nurses, and nurse practitioners licensed and in good standing in any state may practice in New York State.

2.   Un-registered but licensed New York nurses, LPNs and NPs, may practice in New York, so long as they are in good standing.

3.   Graduates of nursing and LPN programs in New York State may be employed to practice nursing under the supervision of a RN in a hospital or a nursing home for 180 days immediately following their graduation. A provision like this would have been particularly helpful for home care also, but there is no indication in the EO that this “recent graduate” provision extends to home care.

4.   Nursing homes are authorized to “discharge, transfer or receive” patients if necessary due to staffing shortages. This may be helpful to LHCSAs that will be required to discharge patients that they cannot serve due to workforce shortages.

5.   Allows MLTCs to suspend pre-authorization reviews for admission to home care following a hospital admission, to the extent necessary to increase availability of healthcare staff.

Providers should take note of these, welcome, provisions but advocate for further relief from the Governor, as the October 7 deadline approaches.

On September 23, 2021, New York State issued updated model airborne infectious disease exposure prevention plans for employer use pursuant to the HERO Act. While a general model plan appropriate for office workplaces and separate plans for certain specific industries were previously issued by the New York State Department of Labor (NYDOL), these have now been updated and reissued with substantive changes to two sections – face coverings and social distancing.

With regard to face coverings, the model plans now provide that, in workplaces where all individuals on premises, including but not limited to employees, are fully vaccinated, face coverings are “recommended, but not required.” For all other workplaces, the model plan now states: “Employees will wear appropriate face coverings in accordance with guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.” Previously, the model plans stated that “employees will wear face coverings throughout the workday to the greatest extent possible” and “[f]ace coverings and physical distancing should be used together whenever possible.”

With regard to social distancing, the revised model plans remove prior references to “avoiding unnecessary gatherings” and “using a face covering when physical distance cannot be maintained.”  Now, the section states only: “Physical distancing will be used to the extent feasible, as advised by guidance from State Department of Health or the Centers for Disease Control and Prevention, as applicable.” The revised plans still, however, require the employer to list the health and safety controls it will implement in circumstances where distancing cannot be maintained.

As a reminder, the foregoing Hero Act requirements are applicable to LHCSA office staff, fiscal intermediary office employees, and personal assistants in CDPAP.

Yesterday, we alerted our readers that the Second Circuit had, on Friday, granted a temporary injunction against the enforcement of the healthcare worker vaccination regulation. By order posted today, however, the Second Circuit has “dissolved” that temporary injunction. In relevant part, the Second Circuit’s order states: “Plaintiffs [We The Patriouts USA Inc.] move for a temporary injunction pending resolution of this appeal, prohibiting enforcement of New York State’s regulation requiring vaccination of specified healthcare workers.  

A judge of this Court entered the injunction on Friday, September 24, 2021 for administrative purposes without reference to the merits, pending decision by a three-judge panel.  IT IS HEREBY ORDERED that the September 24 temporary injunction is DISSOLVED. IT IS FURTHER ORDERED that oral argument will be heard on Wednesday, September 29, 2021 at 10:00 AM, limited to Plaintiffs’ challenge based on the First Amendment’s clause guaranteeing Free Exercise of Religion.”

Therefore, the general vaccination mandate is “back on,” for the time being. And, per an injunction granted in a different lawsuit by a federal judge in Utica, New York, providers are also still required to continue considering religious exemption requests.

We will provide an update on this situation as more information becomes known. In the meantime, please do not hesitate to let us know if you have any questions.