As detailed in our previous Legal Briefing (see link: Mandatory COVID-19 Vaccines (lawpf.com)), the New York State Department of Health (“DOH”) issued emergency regulations requiring that many types of healthcare facilities mandate personnel to be fully vaccinated against COVID-19. At least the first dose of the vaccine had to be obtained by staff at hospitals and skilled nursing facilities by September 27, 2021. Staff at other covered entities (such as assisted living providers, hospice providers, diagnostic and treatment centers, and certain home health agencies) will have to be vaccinated by October 7, 2021.
One issue that has been raised by this new mandate is whether staff at such covered entities who choose not to be vaccinated will be eligible for unemployment benefits if they voluntarily quit or are terminated for failing to get vaccinated. The New York Department of Labor has just addressed this issue on its website (see link: Unemployment Insurance Top Frequently Asked Questions | Department of Labor (ny.gov)) by adding the following question and answer (Q.6):
6. If a worker refuses to get vaccinated, will they be eligible for UI benefits?
Like all UI claims, eligibility will depend on the circumstances as each claim is unique and reviewed on a case-by-case basis. Workers in a healthcare facility, nursing home, or school who voluntarily quit or are terminated for refusing an employer-mandated vaccination will be ineligible for UI absent a valid request for accommodation because these are workplaces where an employer has a compelling interest in such a mandate, especially if they already require other immunizations. Similarly, a public employee who works in a public setting and is subject to a local government mandate to submit proof of vaccination or negative testing may be disqualified from the receipt of UI if they refuse to get vaccinated or tested. In contrast, a worker who refuses an employer’s directive to get vaccinated may be eligible for UI in some cases if that person’s work has no public exposure and the worker has a compelling reason for refusing to comply with the directive. (Emphasis added).
Additionally, in an effort to address the staffing concerns resulting in large part from the vaccine mandate, Governor Kathy Hochul signed a new Executive Order #4 on September 27, 2021 declaring a disaster emergency due to the state’s healthcare staffing shortages:
No. 4: Declaring a Statewide Disaster Emergency Due to Healthcare Staffing Shortages in the State of New York (ny.gov)
This Executive Order removes various restrictions in order to permit additional groups of health care workers to provide care to meet staffing needs in the state, including but not limited to, the following:
Permitting New York State licensed providers without current registrations to practice without penalty for a lack of state registration;
Permitting out of state/country health care workers to practice in the State, including physicians, nurses, physician assistants, midwives, and social workers;
Waiving re-registration fees and eliminating barriers to re-enter the workforce for retirees; and
Permitting physician visits in nursing homes to be done using telemedicine.
There are still a number of lawsuits pending regarding the state’s vaccine mandate, so this remains an unsettled requirement and the law is changing almost daily. There will likely be more changes and developments in the near future.
Our Firm has extensive experience counseling employers and businesses on compliance requirements, as well as preparing and implementing applicable policies. If you have any questions related to this Legal Briefing, please contact any member of our Firm at 585-730-4773. Please note that any embedded links to other documents may expire in the future.
This Legal Briefing is intended for general informational and educational purposes only and should not be considered legal advice or counsel. The substance of this Legal Briefing is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2021 Law Offices of Pullano & Farrow PLLC