Potential legal claims from New York’s health care worker vaccine mandate

COVID-19

ROCHESTER, N.Y. (WROC) — Monday marks the first day of the COVID vaccine mandate for health care workers in hospitals and nursing homes. The mandate offers limited exceptions for medical reasons, while a religious exception remains contested legally.

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 and Associates, says that, 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 says. “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, Roberts says that claims may arise from the vaccine itself, or how it was administered. Since the start of the pandemic, he says 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,” he says.

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,” he says. “It just needs to be a sincerely held religious belief.” This means it can be vetted for by something like a religious leader.

Keneally says 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, some perceive discrepancies about who is included, like contractors working in hospitals. “There is some debate over who’s covered by it, because there is language in the FAQs that state construction contractors are not subject to the mandate. But, others disagree,” says Keneally.

Copyright 2021 Nexstar Media Inc. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed.

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