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Health Care Personnel in New York Must Get Flu Vaccination or Wear a Mask

  • October 1, 2013

New regulations issued by the New York State Department of Health (DOH) require personnel employed by or affiliated with a wide array of health care facilities and agencies to either get the flu vaccine or wear a mask to prevent influenza transmission to patients and residents. Significantly, the new regulations require covered health care facilities and agencies to develop and implement policies and procedures to ensure compliance with the new rules. The new regulations reflect state officials' longstanding concern with low flu vaccination rates among health care workers. During the 2011-2012 flu season, the DOH found that just 48 percent of health care workers in hospitals and 45 percent in nursing homes were vaccinated against seasonal flu. Approximately four years ago, the DOH adopted regulations requiring health care workers to be vaccinated, with some exceptions. However, strong opposition from politically influential unions, such as SEIU Local 1199, doomed the initiative and the regulations were not put into effect.

The health care facilities and agencies covered by the new regulations include general hospitals, nursing homes, diagnostic and treatment centers, any agency established pursuant to Article 36 of the Public Health Law, such as certified home health agencies, long-term home health care programs, acquired immune deficiency syndrome (AIDS) home care programs, licensed home care service agencies, and limited licensed home care service agencies; and hospices as defined in section 4002 of the Public Health Law. The regulations apply to all personnel employed or affiliated with these health care facilities or agencies, whether or not they are paid, including, among others, members of the medical and nursing staff, contract staff, students and volunteers, who engage in activities such that if they were infected by influenza, they could potentially expose patients or residents to the disease.

To prevent transmitting the flu, the new regulations require most employees at these facilities and agencies either to receive the flu vaccination or wear a surgical or procedure mask while in areas where patients or residents may be present during periods when the Commissioner of the DOH determines that influenza is “prevalent,” which happens annually.

The regulations require covered health care facilities and agencies to document the vaccination status of covered personnel and to report to the DOH, upon request, the number and percentage of personnel that have been vaccinated against the flu for the current flu season. The regulations also require covered facilities and agencies to develop and implement policies and procedures to ensure compliance with the new regulation. The policies must include identification of those areas where unvaccinated personnel must wear a mask.

In light of the new regulations, covered health care facilities and agencies should, at a minimum, take the following actions:

  • Identify and document which personnel are covered by the new regulations;
  • Identify and document which areas of the facility require personnel to wear a mask if they are not vaccinated;
  • Document vaccination status of all covered personnel; and
  • Develop and implement policies and procedures to ensure compliance with the regulations, as well as compliance with applicable federal medical confidentiality requirements of the Americans with Disabilities Act (ADA) and/or HIPAA.

If you have questions about these new regulations, please contact or the Jackson Lewis attorney with whom you regularly work.

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