This week, Governor Cuomo announced that all healthcare workers in New York state, including staff at hospitals and long-term care facilities (LTCF) such as nursing homes, must be vaccinated against COVID-19 by September 27. While scrambling to comply with this new Department of Health mandate, health care providers need to contend with other thorny issues. Can they require patients, clients and visitors to disclose their vaccination status? Where does compliance with public health meet protection of one’s privacy, especially now that President Biden has called COVID-19 “a pandemic of the unvaccinated”? And finally, does the Delta variant – which the CDC says is as contagious as chicken pox — change this conversation?

We know of a doctor who says he spends considerable time and energy educating the undecided or reluctant patients about the COVID vaccine.  He shares that it has been rewarding when he can persuade them, and draining when he can’t. He said some doctors have begun to exclude from their practice those patients who refuse to get vaccinated. This raises complex legal and ethical issues, especially when doctors have a duty of care to patients.

The New York state Excelsior Pass, introduced in March, was the first government-issued vaccine passport in the country; but vaccine mandates in the United States stretch back to George Washington insisting that his Continental Army receive inoculation against smallpox. In 1905, the U.S. Supreme Court upheld the authority of states to enforce mandatory vaccination laws, again to contend with smallpox, on the grounds that it is necessary for public health and safety.

Health care spaces continue to have mask mandates in effect to both protect the vulnerable and safeguard public health. In a similar vein, President Biden’s vaccination mandates for federal workers, including the military, aim to mitigate a threat that seems to have emerged with renewed force. If workers refuse the vaccine, they will need to comply with regular testing, social distancing, masking and limiting travel.

Should New York providers take further steps to enforce and promote vaccines? Should they “incentivize” with money and rewards, as Biden has urged local governments to do? How can they best comply with Governor Cuomo’s new mandate?

Our health care attorneys are monitoring developments to advise on this thorny issue. Stay tuned to our blog for updates.