Publications
August 20, 2021

Understanding the New COVID-19 Vaccine Mandate for Healthcare Workers

Many Maine healthcare facilities were already in the process of evaluating, drafting, and implementing mandatory vaccine policies when the Maine Department of Heath and Human Services issued an Emergency Routine Technical Rule on the subject last week.

Under the new rule, effective August 12, 2021, COVID-19 was added to the existing list of diseases that employees who work at Designated Healthcare Facilities must be immunized against in order to attend work. Healthcare facilities subject to this rule include licensed nursing facilities, residential care facilities,  intermediate care facilities for individuals with intellectual disabilities, multi-level healthcare facilities, hospitals, and home health agencies. 10-144 CMR ch. 264 § 1(E).  The rule also requires EMS Organizations (including municipal EMS departments) and Dental Health Practices to mandate that all employees provide a Certificate of Immunization against COVID-19.

In adopting the COVID-19 vaccine mandate for healthcare workers, Maine joins several other states who have enacted similar requirements, including California, New Jersey, New York, Hawaii, North Carolina, Delaware, Rhode Island, and Washington.  Unlike some of these other states, however, Maine is unique in that there is no exception from the requirement for workers who submit to testing in lieu of receiving the vaccine and there is no religious exemption.

To comply with the new requirement, healthcare employers should keep the following key points in mind when updating vaccination policies:

  • Employees subject to the COVID-19 immunization requirement include “any person who performs any services for wages of other remuneration” for a Designated Healthcare Facility, EMS Organization, or Dental Health Practice.  “Employee” is also defined to include independent contractors.
  • Employees who do not provide proof of immunization are not permitted to attend work unless the employee qualifies for a medical exemption under 22 M.R.S.A. § 802 (4-B).  As of September 1, 2021, a medical exemption is available to an employee who provides a written statement from a physician, nurse practitioner, or physician’s assistant that, in the professional judgment of the provider, immunization against COVID-19 may be medically inadvisable. Prior to September 1, a medical exemption is only available if an employee provides a physician’s written statement that immunization against COVID-19 may be  medically inadvisable.
  • Employees must receive the recommended number of doses of the COVID-19 vaccine.  All employees must receive their final dose by September 17, 2021. As Governor Mills explained at a press conference last week, this means that healthcare workers must be fully vaccinated by October 1, 2021.
  • Employees who do not comply and provide proof of immunization for COVID-19 or documentation of an authorized exemption must be excluded from the workplace for the duration of the declared public health emergency.
  • Except as otherwise provided by law, contract, or collective bargaining agreement, an employer is not responsible for maintaining an employee in pay status as a result of the new requirement.

The new requirements are set forth in Chapter 264 of the Maine Department of Health and Human Service’s Rules, which can be found here.

The vaccine mandate is supported by the Maine Hospital Association, the Maine Health Care Association, other groups, and several of the state’s largest healthcare networks had already announced their intention to make COVID-19 vaccination a condition of employment.  But the mandate has also been met with resistance by some and over the last week protests have been held in Portland, Augusta, and Bangor.  Thus, in addition to revising policies and setting the framework for compliance with the new requirements, healthcare employers must be prepared for the logistics of separating employees who do not wish to become fully vaccinated by the prescribed deadline or working with employees who wish to comply but will not receive a final dose by September 17.

Firm Highlights

News

Nineteen Preti Flaherty Attorneys Selected for Inclusion in 2021 Super Lawyers

Nineteen Preti Flaherty attorneys have been selected for recognition by Super Lawyers , including eleven Rising Stars. Super Lawyers rates outstanding lawyers throughout the United States in more than 70 practice areas. Only five...

Publication

Court Upholds Maine Employers' Discretion Not to Pay for Unused Vacation Time

In January, the First Circuit issued an opinion upholding a lower court's decision that rejected a former employee's attempt to get paid for unused vacation time following his resignation from employment.  See White v...

News

46 Preti Flaherty Attorneys Selected by Peers for Inclusion in Best Lawyers in America 2022, Including 3 “Lawyers of the Year”

Forty-six Preti Flaherty attorneys have been named to Best Lawyers in America 2022, including four “Ones to Watch” and three “Lawyer of the Year” recipients. Inclusion in Best Lawyers in America is considered a...

Publication

New Maine Law Limits Employers’ Ability to Request Applicant Criminal History Information

Last month Governor Mills signed into law LD 1167, “An Act Relating to Fair Chance in Employment.” Maine joins a growing number of states in adopting a “ban-the-box” law that restricts employers’ ability to...

Publication

How to comply with Maine’s new paid leave law

Fittingly, “Vacation Land” is among a small contingent of states that have a paid leave law on the books.  Maine, however, is somewhat unique in that the paid leave afforded under the new law...

Publication

Six Take-Aways from EEOC’s Updated COVID-19 Guidance

The U.S. Equal Employment Opportunity Commission ("EEOC") published guidance in December 2020 advising how EEO laws, including the Americans with Disabilities Act, Title VII of the Civil Rights Act, and the Genetic Information Nondiscrimination...

Publication

The Latest from OSHA on Mitigating and Preventing the Spread of COVID-19 at Work

On the tails of updated guidance from other agencies, the U.S. Department of Labor Occupational Safety and Health Administration ("OSHA") released new pandemic-related guidance last month. This guidance was issued on June 10, 2021...

Event

Legal Lunches: Workin' for the Weekend

Laura Rideout and John Cronan will participate in a panel discussion called "Workin' for the Weekend: Team Safety Including Wage & Hour, OSHA and Workers' Comp in a Post-COVID World" as a part of...