What legal claims may come from New York’s vaccine mandate for health care workers

State News

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ROCHESTER, N.Y. (WROC) — Monday marks the first day of the COVID-19 vaccine mandate for healthcare workers in hospitals and nursing homes. The mandate offers limited exceptions for medical and religious reasons.

Staff who work in home care, hospice, and adult care facilities are required to be vaccinated by October 7.

In preparation for staffing shortages, Gov. Kathy Hochul released a plan that includes signing a state of emergency declaration if needed.

Josh Roberts, a workers compensation attorney at Vincent J Criscuolo & Associates, P.C., said in the future there likely will be claims from individuals who receive the COVID vaccine for work—just like he has seen with the flu vaccine.

“I’ve had clients who have actually developed orthopedic injuries as a result of getting a flu vaccine,” Roberts said. “They were encouraged by their employer to get the vaccine and they ended up having that orthopedic injury covered by workers compensation.”

Although these instances are very rare, claims may arise from the vaccine itself, or how it was administered. Since the start of the pandemic, Roberts has seen claims from workers who have proved they contracted serious COVID cases from work. 

“Successful payment would be entitled to have their medical bills paid by workers compensation, and some portion of their lost wages if those lost wages are related to the injury—in this case contracting COVID.”

Paul Keneally, a labor and employment attorney at Underberg and Kessler, said religious exemptions are one of the most common but they must be legitimate.

“It has to be a sincerely held religious belief. It does not need to be a mainstream or well known religion, it just needs to be a sincerely held religious belief.”

This means it can be vetted for by something like a religious leader. But, Keneally said there will also likely be lawsuits from unvaccinated individuals who have been fired.

“Let’s say there’s someone who doesn’t have a religious or medical exemption, I don’t think those are likely to be successful but we may see some of those.”

Within the mandate, there are also discrepancies on who is included, like contractors working in hospitals.

“There is some debate over who’s covered by it because there is language in the FAQ’s that state construction contractors are not subject to the mandate. But, others disagree,” said Keneally.

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