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.

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