Manatt has been monitoring the various legal challenges related to New York State’s health care personnel vaccination mandate (“NYS vaccination mandate”). As an important update, the Department of Health (DOH) has updated the Frequently Asked Questions (FAQ) document following the recent U.S. Court of Appeals for the Second Circuit decision that vacated the injunction that had allowed for religious exemptions from COVID-19 vaccination under the NYS vaccination mandate. With the NYS vaccination mandate in full effect and the DOH FAQ response outlined below, pursuant to NYS DOH guidance, covered entities are now required to remove an employee who is unvaccinated pursuant to a religious exemption from any role in which he or she could expose a patient or other personnel to COVID-19. An employee who is unvaccinated pursuant to a religious accommodation is permitted to continue to work outside the presence of patients and other personnel.

In response to the question “Does this regulation include a religious exemption?,” DOH writes:

No, there are no religious exemptions provided for through the regulation. However, covered entities should follow federal, state and local laws and guidance to determine, on a case by case basis, whether and in what circumstances it may be appropriate to provide reasonable accommodations for personnel, who, because of sincerely held religious beliefs, do not get vaccinated against COVID-19. While this regulation does not preclude such reasonable accommodation requests and considerations, covered entities cannot permit unvaccinated individuals to continue in “personnel” positions such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients, or residents to the disease. (10 NYCRR Section 2.61(a)(2) defines “personnel” covered by this regulation). Covered entities could consider other reasonable accommodations to eliminate the risk of such exposure.

It is important to note that the NYS vaccination mandate remains the subject of litigation in both federal and state courts. While it appears that DOH will seek to enforce the regulation in the absence of the injunctions that were previously in place, it is unclear how quickly the department will seek to enforce the changes to employee religious exemptions outlined above.