On February 18, 2022, the New York Department of Health issued a press release stating that to avoid potential staffing issues and to allow NY healthcare workers more time to become boosted against COVID-19, the booster requirement that was to apply to all healthcare workers eligible to receive a COVID-19 booster shot will not be enforced on February 21, 2022 as originally announced.

The state will reassess in three months whether additional steps are needed to increase the booster rate among healthcare workers. At present, the state reports that 75% of healthcare workers in New York have received or are willing to receive a COVID-19 booster shot.  Healthcare workers are still required to comply with the original vaccination requirements.

The booster shot requirement was originally imposed when the state’s regulation requiring COVID-19 primary vaccinations, 10 NYCRR 2.61, was amended earlier this year to require a booster shot or supplemental doses of vaccine, as recommended by the CDC. The state subsequently updated its Frequently Asked Questions (FAQs) Regarding the Prevention of COVID-19 Transmission by Covered Entities Emergency Regulation to, among other things, clarify when a booster is recommended:

Q: If CDC Recommends a booster 5 months after the primary series, and 5 months after the primary series is April 1, 2022, what is the date by which personnel must get the booster?

A: Personnel have 30 days from the day they become eligible, so personnel in this example must get the booster by May 1, 2022. But see FAQ #26 below.

Q: Are there personnel who are not eligible for a booster or supplemental dose exactly 5 months after the primary series?

A: Yes, facilities may have to determine on a case by case basis when personnel should have received a booster or supplemental dose as recommended by the CDC. For example, certain personnel may need a temporary medical exemption from receiving a booster in connection with having tested positive for or having been treated for COVID-19. In such cases or other cases that require interpretation of CDC recommendations, personnel may not be eligible for the booster 5 months after the primary series. Facilities may have to exercise operational discretion to determine when personnel are eligible for a booster, provided that they do require and communicate to their personnel that effective immediately, personnel have to have received any booster or supplemental dose as recommended by the CDC, absent receipt of a medical exemption, and they have a reasonable system for documenting compliance with this requirement.

The state made it clear that this change is also based on the state health commissioner’s following comments: “the reality is that not enough healthcare workers will be boosted by next week’s requirement in order to avoid substantial staffing issues in our already overstressed healthcare system. That is why we are announcing additional efforts to work closely with healthcare facilities and ensure that our healthcare workforce is up to date on their doses.” Should the state re-impose a booster shot deadline after its re-assessment in three months, it is expected that the state will also adhere to the guidance that those healthcare workers eligible for boosters must receive it by a to-be-announced deadline, while those workers ineligible for a booster shot will have to receive it within a specified timeframe once they become eligible.

Healthcare employers are encouraged to continue to confer with counsel to address the continuously changing legal landscape regarding vaccinations and COVID-19.