September 28, 2021

Good afternoon,

In the wake of the Executive Order issued by Governor Hochul today that implements temporary regulatory and other flexibilities to assist healthcare organizations that are struggling under the weight of the DOH vaccine mandate, we have had some communications with the Governor’s Office regarding whether the Executive Order pertains to providers other than those currently mandated under the DoH vaccine mandate.  Specifically, we wanted to know if BH providers can take advantage of the flexibilities issued in the Executive Order due to our ongoing workforce crisis.
Counsel’s Office responded that the EO only applies to the extent there are critical staffing shortages. It is not a free for all – it can’t be exercised for convenience or cost saving. But if there are downstream impacts of staffing shortages it would be available. The Governor’s Office states they are monitoring the use of the flexibilities very closely.

Our read?  It appears the reason the Executive issued today’s EO is to respond to the intense requests for assistance coming from hospitals, nursing homes, home care and other healthcare settings that are now mandated to have all workers vaccinated where those that are not vaccinated must be laid off.  The Administration is giving these healthcare providers flex and relaxation of laws to fill vacancies being created by the mandate, and to address service needs with out of state/country professionals and expanded scopes of practice.  Since BH is not currently mandated to have a vaccinated workforce we think the response from the second floor is that the EO doesn’t apply to us unless (as an example) your agency loses vaccinated workers who go to hospitals/nursing homes where jobs open up and you are left with more shortages as a result.

We are following up. One line of inquiry we are pursuing is instances in which our members are proactively mandating their entire workforce be vaccinated. If these agencies make layoffs because of a self-imposed mandate, can the agency take advantage of the EO?  Another question we will ask is if the EO can be adjusted to include organizations that are experiencing serious staffing shortages unrelated to vaccine mandates?

Stand by for more.