January 31, 2023

Volume XIII, Number 31


January 30, 2023

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New York State Announces COVID-19 Vaccination Mandate for Healthcare Workers

New York Governor Andrew Cuomo has announced that all healthcare workers in New York State must receive at least one dose of a COVID-19 vaccine by September 27, 2021. The mandate includes staff at hospitals and long-term care facilities, including nursing homes, adult care, and other congregate care settings.  In connection with this announcement, the New York State Department of Health will issue Section 16 Orders requiring all hospital, long-term care facilities, and nursing homes to develop and implement a policy mandating employee vaccinations.

Consistent with guidance from the EEOC, as well as under the New York State and New York City Human Rights Laws, requiring that employers consider the potential for reasonable accommodations to mandatory vaccination policies on the basis of disability or sincerely held religious beliefs, the announcement confirms that “limited exceptions [will be made] for those with religious or medical reasons” for not being vaccinated.

The announcement also suggests that additional mandates may be forthcoming. Specifically, the announcement states that “[the governor has] strongly urged private businesses to implement vaccinated-only admission policies, and school districts to mandate vaccinations for teachers. Neither will occur without the state legally mandating the actions — private businesses will not enforce a vaccine mandate unless it’s the law, and local school districts will be hesitant to make these challenging decisions without legal direction.”

This update follows Governor Cuomo’s earlier announcements requiring MTA and Port Authority employees and state employees and patient-facing employees in state-run hospitals, to be vaccinated against COVID-19 by Labor Day.  New York City has also issued a mandate requiring patrons and workers of indoor dining, indoor fitness, and indoor entertainment venues to have received at least one dose of a COVID-19 vaccine beginning August 17, 2021.

Healthcare employers taking steps to comply with the new mandate are reminded that, in accordance with New York State Labor Law Section 196-c, employers are required to provide workers up to four hours of paid leave for each COVID-19 vaccine injection they receive, at the employee’s regular rate of pay. Further, OSHA’s Emergency Temporary Standard issued on June 21, 2021 requires that covered employers in work settings where employees provide health care or health care support services “support COVID-19 vaccination for each employee by providing reasonable time and paid leave … to each employee for vaccination and any side effects experienced following vaccination.”

More guidance on this mandate, including penalties for workers who remain unvaccinated, is expected to follow.

Megan Childs also contributed to this update.

© 2023 Proskauer Rose LLP. National Law Review, Volume XI, Number 230

About this Author

Evandro Gigante Labor and Employment Lawyer Proskauer Rose Law FIrm

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents clients through a variety of labor and employment matters, including allegations of sexual harassment, race, gender, national origin, disability and religious discrimination. Evandro also counsels employers through reductions-in-force, employee relations issues and other sensitive employment matters.

With a focus on discrimination and harassment claims,...

Harris M Mufson, Class/Collective Action Attorney, Proskauer
Senior Counsel

Harris Mufson is a senior associate in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration and Whistleblowing & Retaliation Groups.

Adept at counseling clients at every turn of the litigation process, Harris represents employers in a variety of industries, including financial services, health care, entertainment, sports and legal, with respect to a wide range of labor and employment law matters. These include compensation disputes, employment discrimination and retaliation, whistleblowing,...

Laura M. Fant, Labor & Employment Attorney, Proskauer Law Firm

Laura M. Fant is an Associate in the Labor & Employment Department, resident in the New York office. She is a member of the Accessibility and Accommodations Practice Group, and frequently counsels on matters involving the Americans with Disabilities Act (ADA) and state public accommodation law, as well as disability accommodation in the workplace. She has experience conducting accessibility audits and providing ADA and accessibility training for clients in a variety of sectors, including retail, sports, and not-for-profit. Her practice also focuses on wage and hour...

Alex Downie  New York  Labor & Employment Law
Law Clerk

Alex Downie is a law clerk in the Labor & Employment Law Department and a member of the Employment Litigation & Arbitration Group. He previously worked as a summer associate at Proskauer and as an intern at the Department of Justice.

Alex earned his J.D. from the University of Virginia School of Law, where he served as the executive editor of the Virginia Law & Business Review. He also volunteered for the school’s employment law clinic, where he assisted with a variety of employment-related matters ranging from employment discrimination to wage and hour disputes...