NYSDOH Requires Surgical Masks for Unvaccinated Health Care Workers

Reposted with permission from Nixon Peabody Health Law Alert
Author(s): Barbara A. Asheld, Laurie T. Cohen, Brooke A. Lane

MaskThe New York State Department of Health (“DOH”) has adopted regulations that require all health care and residential facility personnel that have not been vaccinated against influenza to wear a surgical or procedure mask while in areas where patients or residents may be present.

Facilities covered by the regulations include hospitals, nursing homes, diagnostic and treatment centers, home health agencies, long-term home health care programs, AIDS home care programs, and hospices.  The regulations define “personnel” broadly to include anyone who is employed by or affiliated with such facilities, including students and volunteers.  Facilities must provide personnel with the masks free of charge, and the masks must be worn during influenza season, the duration of which shall be determined by the DOH Commissioner.  The regulations are effective as of July 31, 2013.

Historically, DOH has taken a strong position in favor of mandatory influenza vaccinations for health workers. In 2009, DOH was unsuccessful in an attempt to promulgate emergency regulations that would have required influenza vaccinations for personnel that had direct patient contact.    Ultimately, in light of ardent opposition and a vaccine shortage, DOH did not seek to finalize the emergency regulations.

Current regulations, however, do require vaccinations against measles and rubella for personnel of hospitals, nursing homes, diagnostic and treatment centers, home health agencies, and hospices.  Additionally, long-term care facilities, adult homes, adult day health care facilities, and enriched housing programs are required to provide or arrange for influenza vaccinations on an annual basis, and pneumococcal vaccinations (when indicated) for all residents and employees.

As influenza season approaches, facilities should evaluate their policies and procedures to ensure that they are compliant with all vaccination requirements.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

For additional information please visit the NYSDOH Website:


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