On April 1, 2021, the New York Department of Health (NY DOH) issued an update to its prior guidance for health care personnel on returning to work following COVID-19 exposure. This update provides further clarifications regarding quarantine, furlough, and testing for health care personnel exposed to COVID-19, including those who are fully vaccinated or have recovered from previous COVID-19 infection, and addresses further changes in New York’s travel advisory that also went into effect on April 1, 2021.  The updated guidance regarding travel, however, was further superseded by a further travel advisory update on April 10, 2021.

The information contained in the updated guidance supersedes such guidance and any other previous guidance related to fully vaccinated, asymptomatic healthcare personnel (health care employee) returning to work after exposure to COVID-19 or travel. Per the update, all healthcare facilities are expected to know which of their staff have been vaccinated. Any vaccinated staff who did not receive the vaccine through their workplace must inform the facility of their vaccination status through the same process the facility uses to maintain information on annual influenza immunizations and tuberculosis tests.

Asymptomatic Healthcare Personnel Returning to Work After Exposure to COVID-19 Who Are Not Vaccinated

Asymptomatic health care employees who have had “exposure to” or been in “contact” with a confirmed or suspected case of COVID-19 (as defined in the updated guidance), may return to work after completing a 10-day quarantine without testing if no symptoms have been reported during the quarantine period, provided these conditions are met:

• Health care employees must continue daily symptom monitoring through day 14;

• Health care employees must be counseled to continue strict adherence to all recommended non-pharmaceutical interventions, including hand hygiene, the use of face masks or other appropriate respiratory protection face coverings, and the use of eye protection;

• Health care employees must be advised that if any symptoms develop, they should immediately self-isolate and contact the local public health authority and/or their supervisor to report this change in clinical status and determine if they should seek testing.

• Health care employees exposed to COVID-19 who are working in nursing homes or adult care facilities certified as Enhanced Assisted Living Residences (EALR) or licensed as Assisted Living Programs (ALP) who complete the 10-day quarantine cannot return to their workplace (must furlough) through the 14th day after exposure unless they meet the vaccination or recent SARS-CoV-2 recovery criteria below.

The NY DOH has also detailed exceptions for health care employees who have been vaccinated or have recovered from COVID-19:

Asymptomatic Healthcare Personnel Exposed to COVID-19 Who Are Fully Vaccinated

Asymptomatic health care employees who have been “fully vaccinated” against COVID-19 need not quarantine or furlough after exposure to COVID-19. The updated guidance defines “fully vaccinated” as being two weeks or more after either receipt of the second dose in a two-dose series or receipt of one dose of a single-dose vaccine. It also states that restrictions should still be considered for fully vaccinated health care employees who have underlying immunocompromising conditions which might affect the level of protection provided by the vaccine.

In light of the threats posed by various COVID-19 variants and the open question of the effectiveness of a given COVID-19 vaccine against emerging variants, the NY DOH is requiring all fully vaccinated health care employees working in a nursing home, enhanced assisted living residence, or assisted living program to continue to participate in diagnostic COVID-19 testing twice per week or as otherwise required by the commissioner of the Department of Health under Governor Andrew Cuomo’s Executive Order 202.88. The NY DOH recommends these particular health care employees be assigned to areas in which they will have contact with vaccinated residents only (except for health care employees working in pediatric facilities and units). The updated guidance makes it clear that in all exposure situations health care employees are expected to comply with symptom monitoring and nonpharmaceutical interventions through day 14 following an exposure.

Asymptomatic Healthcare Personnel Exposed to COVID-19 Who Are Recovered From SARS-CoV-2

Per the CDC’s “Testing Healthcare Personnel for SARS-CoV-2” (last updated February 16, 2021), asymptomatic health care employees who have recovered from SARS-CoV-2 infection need not undergo repeat testing or quarantine if exposed to COVID-19 within three months after the date of symptom onset from the initial SARS-CoV-2 infection or date of first positive diagnostic test if asymptomatic during illness.

According to the updated guidance, such health care employees working in a nursing home, enhanced assisted living residence, or assisted living program must continue to participate in diagnostic COVID-19 testing twice per week or as otherwise required by the commissioner of health in accordance with Executive Order 202.88. The NY DOH recommends that exposed but recovered health care employees in these facilities also be assigned to areas in which they will only have contact with vaccinated residents (except for health care employees working in pediatric facilities and units), and that all health care employees, irrespective of whether they work in a nursing home, enhanced assisted living residence, or assisted living program, engage in symptom monitoring and nonpharmaceutical interventions through day 14 following an exposure.

Guidelines for Asymptomatic Healthcare Personnel and Travel

The updated guidance of April 1, 2021, sets forth that asymptomatic health care employees arriving in New York from other U.S. states and territories did not have to test or quarantine. The NY DOH still recommended a health care employee quarantine in such circumstances following domestic travel, consistent with the CDC’s current recommendations for international travel, unless the health care employee is fully vaccinated or has recovered from a laboratory-confirmed COVID-19 diagnosis within the past three months. The April 1 updated guidance also addressed when a health care employee may return to work after international travel.

The state’s April 10, 2021 Updated Interim Guidance for Travelers Arriving in New York State (NYS), however, expressly supersedes the provisions of the April 1 updated guidance. The April 10 guidance states, among other things, unvaccinated health care personnel who have not recovered from COVID-19 in the past three months and who specifically work in nursing homes, enhanced assisted living residences or assisted living programs must “furlough” for 14 days after arrival in New York in connection with domestic travel (travel lasting 24 hours or longer to states or U.S. territories other than the states of Pennsylvania, New Jersey, Connecticut, Massachusetts, and Vermont) or international travel, consistent with CDC recommendations to avoid contact with people at higher risk for severe disease for 14 days after travel. Moreover, unvaccinated health care personnel who have not recovered from COVID-19 in the past three months working in all other health care settings must furlough for seven days with a test three to five days after arrival in New York from international travel, or furlough for 10 days if not tested. Fully vaccinated individuals who have not recovered from COVID-19 in the past three months are recommended to get tested three to five days after arrival in New York from international travel furlough for 10 days if not tested.

Staffing Shortages

As we have previously reported, the NY DOH has excepted health care employees from quarantines where a health care employer has a staffing shortage and the health care employee meets certain criteria. The guidance update contains the current guidelines on staffing shortages and the ability of health care employers to obtain waivers regarding NY DOH return-to-work guidelines and implement crisis capacity strategies to mitigate staffing shortages.

A reminder that that New York COVID-19 sick leave (previously written about here and here) is still available to health care employees who must isolate or quarantine. The state of New York vis-à-vis the Department of Labor and the Attorney General’s Office has increasingly brought enforcement actions against employers that have failed to provide COVID-19 sick leave in accordance with the year-old sick leave law.

As many health care employers have already learned, the state of the law and guidance surrounding COVID-19, vaccines, quarantines, and health care employees has been regularly changing throughout the pandemic. All New York employers are encouraged to consult knowledgeable counsel regarding employer obligations to comply with the NY DOH’s constantly changing guidance as well as to discuss other emerging COVID-19-related issues, rules, and requirements.