Healthcare and Labor & Employment Law Alert: State Addresses Health Care Provider Religious Accommodations to the Vaccine Mandate

On November 15, 2021, the New York Department of Health (NYDOH) directed Chief Executives and Administrators of health care providers covered by the state’s vaccine mandate to revisit any existing religious accommodations granted to covered health care workers. Between the letter and comments reportedly made following its issuance, the NYDOH has directed that by November 22, 2021, in order to keep their jobs, all individuals who had been exempted from vaccination based on sincerely held religious beliefs must be vaccinated unless they can be accommodated through remote work or work in isolation from patients, residents and other covered personnel. If not vaccinated or able to work remotely or otherwise in isolation, covered personnel cannot report to the worksite, leaving the option of either a leave of absence or termination. The letter also confirms that should individuals who had requested a religious accommodation also happen to meet the criteria for a medical exemption, that option is still available.

The November 15 letter highlights the fact that the vaccine mandate only applies to “personnel,” which is defined in the emergency regulation as “all persons employed or affiliated with a covered provider, whether paid or unpaid, . . . who engage in job activities such that if they were infected with COVID-19, they could potentially exposed other personnel, patients, or residents to the disease.” The letter suggests that if a person requests a religious accommodation, the only option that complies with the emergency regulation is limited to one that keeps such individual out of contact with other covered personnel, patients and/or residents (such as remote work or work in an isolated location). The letter further implies that a covered provider risks violating the emergency regulation if they offer unvaccinated individuals a religious accommodation that permits them to continue their job duties in contact with others (such as masking, periodic testing, etc.). The comments reported to have been made by NYDOH representatives following issuance of the letters confirmed this implication.

The letter acknowledges that certain providers are obligated by Title VII of the Civil Rights Act and the New York State Human Rights Law to consider, on a case-by-case basis, requests for reasonable accommodation based on an employee’s sincerely held religious beliefs. However, the letter directs covered providers to a series of Frequently Asked Questions (FAQs) about the emergency regulation, including one added late last week that explicitly addresses religious accommodations. Referring to the interplay of the emergency regulation and religious accommodation requests, updated FAQ #20 states:

“While this regulation does not preclude 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. … Covered entities could consider other reasonable accommodations to eliminate the risk of such exposure.” (Emphasis added).

Taken together, the letter and the FAQ support the conclusion that a religious accommodation which permits unvaccinated personnel to interact with other personnel, patients and residents would violate the emergency regulation and, thus, would pose an “undue burden” on the employer. Therefore, a covered provider that declines to grant such accommodations will not likely be held to violate Title VII. In addition, NYDOH is likely to take issue with covered providers that grant unvaccinated workers religious accommodations that permit them to work in contact with others. Even so, NYDOH has declined to specifically comment on possible enforcement actions.

Healthcare trade associations have requested that the November 22, 2021 compliance deadline be extended, but, to date, NYDOH has not responded. While the emergency regulation technically expires on November 23, 2021, its extension is on the agenda for the November 18, 2021, Public Health and Health Planning Council meeting. Providers, therefore, should immediately review and resolve any remaining religious accommodations in accordance with this recent directive or face uncertain enforcement possibilities. Hancock Estabrook issued an alert earlier with respect to possible enforcement options available to the NYDOH.

We will continue to follow these developments. Please contact the attorneys in our Healthcare Industry or Labor and Employment Practice Area with any questions.

This communication is for informational purposes and is not intended as legal advice.