Category: Health Care

For any provider that has recently completed the HERDS Survey, it might be of no surprise to learn that the DOH will be proposing to impose booster shot requirements on covered healthcare personnel.

The Public Health and Health Planning Council (“PHHPC”) is scheduled to meet on January 11, when the DOH will propose amending its healthcare worker vaccine mandate REGULATION to require covered healthcare personnel to receive the booster shot.

The regulation, if adopted, would amend the current Department of Health vaccine mandate, found in Section 2.61, to require covered staff to be “fully vaccinated…and to have received any booster or supplemental dose as recommended by the CDC.”

Exemptions from the mandate would be allowed for medical reasons.

The proposed regulation contains no indication that it would extend to CDPAP.

Please let us know if you have any questions about the State’s or any federal vaccine mandate.

On January 4, the New York Department of Health issued a GUIDANCE DOCUMENT
(Jan. 4) to clarify the return-to-work and quarantine/isolation guidelines it published on
December 24 (GUIDANCE DOCUMENT (Dec. 24)). These guidelines apply to
healthcare workers and, in many respects, defer to the CDC’s standards.

First, the applicable rule for an agency to follow with respect to personnel who are
COVID positive or that have been exposed to COVID will depend on whether the
agency is in (1) a conventional “strategy,” (2) contingency strategy, or (3) crisis
strategy. These “strategy” labels are CDC’s terms for the 3 operations stages, and each
stage is defined by healthcare personnel availability (i.e., the less healthcare workers
there are, the “higher” level of urgency and strategy).

In simplest terms, an agency is under a “conventional strategy” if it is following the
usual, non-emergency, and ordinary standards for operations during the pandemic. In
our experience, almost no agency is in this phase at the moment.
An agency is under a “contingency” strategy when it is experiencing staffing shortages
due to the pandemic, but it is able to continue providing patient care. We anticipate that
most providers are still in this phase.

Crisis strategies are implemented only after a contingency strategy is exhausted, and
the healthcare provider has notified the DOH that it is in a “crisis” state because it
cannot provide essential patient services despite instituting contingency strategies.
The quarantine, isolation, and return-to-work obligations are summarized in the DOH’s
January 4 guidance document. As most relevant to New York LHCSA and CHHA
providers:

• For providers who are in the conventional strategy phase, infected staff that is
  fully vaccinated but not boosted must generally follow the CDC 10-day
  quarantine guidelines, or 7 days with a negative test. For staff that has been
  exposed but is not deemed infected, the same rule applies.
• For providers that are in the contingency phase, infected staff who are fully
  vaccinated but not boosted are required to follow the DOH’s December 24
  guidance issued by the DOH, which generally provides for a 5-day isolation
  period. If the employee was exposed but is not deemed infected, no work
  restrictions are required with negative tests on days 1,2,3 and 5-7 (per CDC).
• For providers that have activated their crisis strategy, fully vaccinated and un-
  boosted staff that has been exposed to COVID is not subject to any work
  restrictions. For fully vaccinated staff that are infected, the provider must contact
  the DOH and follow CDC Crisis Strategies, which currently contain no work
  restrictions for infected staff (if fully vaccinated).

Other rules apply for non-vaccinated staff and boosted staff. Please be sure to refer to

the January 4 “matrix” chart for those rules.

If you have any questions about these requirements for your staff, please let us know.

Governor Hochul has extended New York State’s mask mandate for all businesses and venues to February 1. As we had previously reported, the mask mandate went back in effect on December 13 and was scheduled to expire on January 15, 2022. Businesses or venues that require proof of vaccination to enter are exempt from the mandate. As a reminder, the mandate applies to healthcare providers, irrespective of employee vaccination status.

For Upstate and Long Island employers, the New York State minimum wage is increasing, effective with any work performed on or after 12 a.m. on December 31. Contrary to popular belief, the increase does not go into effect on January 1, 2022.

Employers should ensure that their payroll systems have been updated to account for this increase and its impact on overtime rates, the computation of the regular rate, spread of hours obligations, and other similar issues that are implicated with minimum wage workers.

If you have any questions about your wage and hour compliance, please contact Poricanin Law. For ongoing assistance with HR and payroll management, please contact our preferred partner, Forework, at www.forework.com. The New Year is a great time to implement compliant processes across your operations.

As most employers were preparing to leave town for the holidays, New York Attorney General’s Office issued a new batch of wage parity subpoenas to licensed home care and fiscal intermediary providers in the downstate area. What is perhaps most notable is that the Attorney General had only recently withdrawn from the Governor’s race, citing other “important” projects and initiatives that she would need to complete as the Attorney General. It will be interesting to see whether Ms. James’s withdrawal from the race will expedite the conclusion of longstanding wage parity investigations at her office, and whether her office will make any changes in how it proceeds with the investigations of providers’ wage parity compliance.

In other noteworthy wage parity news, New York’s association of CPAs is noting difficulties with the wage parity certifications that will be required of all fiscal intermediary and LHCSA providers starting in June, 2022. Providers will recall that they will be required to utilize an “independent” financial auditor to certify to the providers’ compliance with wage parity spending requirements. The association is contacting the State to report that CPAs cannot certify results in the manner being contemplated by the guidance issued by New York State. We are monitoring this situation and will advise of any changes to the wage parity certification process.

The U.S. Supreme Court has scheduled expedited oral arguments on January 7, 2022, on OSHA ETS and the CMS vaccine mandates. The Court’s decisions could decide whether the two vaccine mandates are lawful and, thus, whether covered employers must comply with them.

As our readers will recall, the OSHA ETS regulation applies to companies with 100 or more employees and requires employees to either vaccinate or test for COVID once per week as a condition of working on site at an employer’s place of business. Separately, the CMS regulation requires covered healthcare providers (in New York, CHHAs) to vaccinate their staff. The CMS regulation does not allow covered employees to “test out” of the mandate. Both the CMS and the OSHA regulations allow for religious and medical exemptions.

The CMS and OSHA regulations have both been challenged in various federal district courts. As we have been reporting for weeks, given the number of lawsuits filed against these regulations, and the importance of the questions raised by the lawsuits, this issue was bound to make its way to the United States Supreme Court.

OSHA has announced that it will begin requiring covered employers to comply with the regulation’s mandate as of January 10. The Supreme Court has not issued a stay on the enforcement of the OSHA regulation pending its decision, and it is unknown whether the Court will issue its decision in time for the January 10 compliance deadline set by OSHA. Thus, employers covered by the OSHA regulation should evaluate carefully whether to take a “wait and see” approach. New York home care providers will recall that the OSHA regulation most likely only applies to their fiscal intermediary personal assistants at this point in time, as their other employees are already covered by the stricter New York DOH vaccine mandate.

For employers covered by the CMS regulation, our readers will recall that the Fifth Circuit Court of Appeals lifted an injunction against the enforcement of the CMS rule for half of the states in the nation. As a result, the CMS regulation technically took effect in twenty-five states after that injunction was lifted (New York included). Nonetheless, CMS’s self-imposed non-enforcement position seems to still be in effect. On December 2, CMS declared that it would not be enforcing its regulation, due to ongoing litigation. CMS has not revoked that stance and, thus, while the regulation is technically in effect, it appears to not be enforced. Covered providers should consult counsel about their current obligations under the CMS regulation in view of these litigation developments.

As employers await the decision of the Supreme Court, they should also be cognizant of any local and, now, City-imposed vaccination mandates that might already be in effect and which may require a greater level of compliance than the federal mandates under the CMS and OSHA regulations.

Please contact us if you have any questions about your current obligations as to the vaccination mandates for your workforce. We will continue to monitor these developments and report on any significant new requirements.

Over the weekend, on Saturday, the federal Fifth Circuit Court of Appeals (which covers Texas, Mississippi and Louisiana) issued a temporary injunction, “blocking” the OSHA ETS from taking effect. The Court noted “grave statutory and constitutional issues” with the ETS. While the intent of the plaintiffs who commenced the litigation against the OSHA ETS was certainly to put the ETS on hold nationwide, the Court’s order does not explicitly state that its injunction is being issued on a nationwide basis. Thus, at the moment, the Fifth Circuit’s injunction does not appear applicable to New York.

In addition to the Fifth Circuit, a number of other federal court litigations have been commenced to block the ETS from taking effect. One of the lawsuits was filed by a coalition of 11 attorney generals from largely-Republican states, while other claims were filed by state representatives and private businesses.

We will probably see further rulings in the coming days and weeks from the federal courts, some following in the Fifth Circuit’s footsteps and blocking the ETS, while others may rule that the ETS was lawfully promulgated and should proceed to take effect. With a patchwork of various legal rulings expected, there will ultimately be a unifying judicial order having the final say on this OSHA ETS matter. Whether that ruling comes from the multidistrict litigation panel (an assembly of federal judges that manages certain kinds of national litigation spanning several jurisdictions) or the U.S. Supreme Court remains to be seen.

At the moment, however, the outcome of the OSHA ETS is uncertain. For home care providers, in view of the NY DOH’s strict vaccination mandate that has already been implemented, the OSHA ETS is, practically, only meaningful because of its potential to apply to CDPAP providers who are considered joint employers of the personal assistants. Moreover, once the RFO takes effect and FIs are definitively declared to be joint employers of personal assistants for all employment purposes, the OSHA ETS will certainly apply to CDPAP. For CHHAs and LHCSAs, however, as discussed above, the OSHA ETS has limited applicability.

Last week, when the OSHA ETS was first issued, we provided a high-level overview of the requirements of the ETS. Since that time, we have received a number of questions regarding the impact of the OSHA ETS on LHCSAs and FIs.

OSHA’s ETS will not apply to New York’s healthcare workers, who are already covered by OSHA’s June 2021 ETS. Providers are reminded to review our alerts from this summer, where the earlier ETS’ requirements were discussed in detail.

More importantly, the stricter NY Department of Health regulations mandating vaccination, and which do not provide for a religious exemption or for a weekly testing option, will supersede the OSHA ETS standards. Thus, insofar as New York’s CHHAs and LHCSAs are concerned, the New York Department of Health regulation requiring vaccination continues to control the vaccination obligations of healthcare personnel in New York. The requirements of the OSHA ETS, concerning PPE, training, and recordkeeping, will apply in conjunction with the more employee-protective vaccination mandate that was passed by the Department of Health.

Insofar as the office employees of CHHAs and LHCSAs are concerned, such employees will also be covered by the stricter New York Department of Health regulations mandating vaccination which, again, do not allow for a religious exemption or for a weekly testing option. The recently published OSHA ETS regulations will apply to New York’s CHHAs and LHCSAs (assuming such companies have at least 100 employees) insofar as the recordkeeping requirements, education of employees, and paid time off requirements are concerned.

The vaccination obligations applicable to office employees who work strictly on FI matters will depend on joint employment and corporate structure considerations.

In summary, as between the New York Department of Health vaccination mandate that providers have been complying with since October 7, and the new OSHA ETS standard that was announced and is scheduled to take effect on December 5, 2021, the stricter and more employee-protective provisions of the DOH’s vaccine mandate will “trump” the less employee-protective measures of the OSHA ETS. Otherwise, where the federal OSHA ETS requirements and New York’s regulations can be reconciled and apply in tandem, they will.