New York State issued guidance advising that, effective May 19 and in accordance with CDC guidance, fully vaccinated individuals do not need to wear masks or be socially distanced, but unvaccinated individuals must continue to wear masks and be socially distanced in most settings. Home care employers have raised several questions about the implications of these new standards for their employees. In response, we offer some key principles, recommendations and rules, at a high level:
- Healthcare providers are not covered by the New York State Reopening New York Guidance. The guidance applies to an array of establishments, but it expressly excludes “healthcare settings.” Arguably, home care agency offices where no patients are served at any time are not considered “healthcare settings” for these purposes and can be treated as offices. However, until the DOH confirms this point, there is uncertainty in lifting the mask and social distancing restrictions for office staff per CDC guidance. Prudent and conservative providers should continue to follow the DOH’s pre-existing COVID-19 health guidelines.
- All employers, including home care providers, have an obligation under OSHA (and, soon, the NY Hero Act) to provide a safe workplace. Lifting the social distancing and mask requirements without express DOH approval exposes the employer to a claim under OSHA for providing an unsafe workplace.
- For home care providers that choose to follow the Reopening Guidance in their offices and allow fully vaccinated employees relief from the mask and social distancing requirements, we remind such providers that the loosened restrictions only apply to fully vaccinated individuals.
- While New York guidance allows employers to either require proof that an employee was vaccinated or to rely on employees’ self-reporting, employers should confirm the vaccination status of their employees as a condition of excusing those employees from the requirement to wear a mask. Again, should there be a claim by an employee that the company has not provided a safe workplace, the employer will have to prove that it has taken reasonable measures to ensure a safe workplace and collecting proof of vaccination status would be simply one factor in the employer’s arsenal to prove that the employer has done its due diligence.
- HIPAA does not apply to the employer and employee relationship. As a general matter, HIPAA applies when there is a patient-provider relationship, and that is not the nature of home care providers’ relationship with their employees. However, the Americans with Disabilities Act and the New York Human Rights Law impose confidentiality obligations, requiring employers to maintain the confidentiality of employees’ medical information. Employers may ask employers whether or not the employee is vaccinated; such questions do not run afoul of the confidentiality laws. However, employers cannot ask their employees follow-up questions regarding vaccinations as freely. For purposes of providing a safe workplace, thus, employers can ask employees to present proof of vaccination status.