New York’s COVID-19 vaccination mandate for health care workers has raised concerns that nearly 130,000 unvaccinated hospital and nursing home workers will soon lose their jobs, potentially creating a workforce crisis if Delta variant cases increase.
Recently approved by a major health ministry and health commissioner Dr. Howard Zucker approved vaccine mandate also reversed a plan that allows health care workers to Refuse COVID-19 syringes based on religious beliefs.
Healthcare workers can still claim limited medical exemptions for the COVID-19 vaccinations, but otherwise they must receive the first dose by September 27 or lose their jobs, as ordered by Democratic Governor Kathy Hochul.
The order affects approximately 94,500 hospital workers and 35,000 nursing home workers who remained unvaccinated through Tuesday. The numbers reflect 21% and 24% of the total workforce in hospitals and nursing homes, respectively, according to government data.
Tens of thousands of other unvaccinated health workers in adult care, home care, hospice and other selected medical fields are also facing a nearly identical COVID-19 vaccine mandate with a deadline for the first dose of October 7, according to state data and health authorities .
Meanwhile, protesters opposed to the vaccination mandate recently held rallies outside hospitals from Finger Lakes to the Hudson Valley, as Republican leaders in Albany warned the order could lead to a health labor shortage.
“Raising vaccination rates across New York is critical, but undermining health care with a unilateral order that removes nurses from facilities is absolutely counterproductive,” said Will Barclay, R-Pulaski, the minority leader of the gathering at Wednesday.
Barclay and other Republicans urged the Hochul government in a letter released Wednesday to reconsider the vaccine mandate. They suggested partially using the alternative of vaccinating health workers or having regular COVID tests, citing the Test-out option already available for P-12 teachers.
During a press conference Wednesday afternoon, Hochul said she was ready to potentially change the vaccine mandate based on worker concerns, including the option of testing or other precautions for anti-vaccination campaigns.
“We need to be aware that there is a huge risk when someone who cares about people’s health carries the virus,” she said, citing last year outbreaks related to health worker exposure.
“But now we have the weapon to fight back, and that is the vaccine. So very tight precautions can be taken, but overall I believe we need to make sure our healthcare workers are vaccinated, ”she added.
Hochul also noted that she is speaking to health care unions to allay labor shortage concerns amid the current COVID-19 surge.
“We are going to reach crisis levels in terms of staffing levels in healthcare facilities, hospitals and nursing homes,” she said.
“I’m trying to do what I can to work with the unions that represent current staff – how we can find more people, how we can meet their concerns and needs,” she added.
Also last week several members of the Ministry of Health expressed interest in adapting the vaccine mandate for employees in the health sector, in order to avoid staff shortages if the administration of Hochul provides information to support the action.
“There are many concerns about implementation, enforcement, unintended consequences, and outcomes too,” said Councilor Harvey Lawrence, president and CEO of Brooklyn-based BMS Family Health and Wellness Centers Thursday.
Is NY COVID Vaccine Mandate Banning Religious Exemptions Legal?
Meanwhile, the lifting of the religious immunization exemption for health workers sparked long simmering legal debates over religious freedom and public health.
The Emergency Ordinance brought back memories of New York State law in 2019, the the religious exception to school vaccinations was lifted, but there are some recent legal precedents related to pandemic restrictions on religious groups.
A well-known example involved the federal courts, including the US Supreme Court, Ruling to block former New York Governor Andrew Cuomo’s strict capacity limits on religious services in areas with high COVID-19 rates, citing discrimination against religious rights.
A December ruling by the federal appeals court argued that capacity limits violated the First Amendment by subjecting religious institutions to stronger scrutiny than many organizations the state deemed “essential” during the coronavirus pandemic.
Nonetheless, Nelson Tebbe, a professor at Cornell Law School, called the lifting of the religious vaccination exemption for health workers “constitutionally justifiable”.
However, potential legal challenges could center around the fact that testing facilities are currently available for other types of workers, selecting health workers for stricter enforcement.
Other questions concerned whether health employers provided remote working facilities or other reasonable accommodation to prevent discrimination against the religious rights of workers who opposed vaccination.
“I don’t think these constitutional arguments should prevail. It seems that a medical exception is very different from a religious one,” Tebbe said. “But with the current composition of the federal courts, I’m not that optimistic.”
In the meantime, Pope Francis and six Catholic cardinals and archbishops have been released a public announcement in August, and urge their religious followers to get vaccinated against COVID-19.
“Getting the vaccine,” said the Pope, “is an act of love.”
Leaders of Muslim and Orthodox Jewish Congregations – including groups of the Orthodox Union and the Rabbinical Council of America, as well as members of the US Council of Muslim Organizations – have also advertised COVID-19 vaccines as safe and effective.
Other federal laws also require employers to take measures to avoid discrimination against workers’ religious rights. The U.S. Commissioner for Equal Opportunities for Employment raised the issue in COVID-19 guidelines released in May.
It found that federal law “does not prevent an employer from requiring all employees who physically enter the workplace to be vaccinated against COVID-19, as long as employers follow the reasonable precautions of the Americans with Disabilities Act and Title VII of the Civil “comply with Rights Act 1964 and other EEO considerations.”
Jon Campbell, editor of the USA TODAY network for New York State, contributed to this report.
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