Mandating Vaccinations: What You Need to Know

By: Jennifer Riggle, Shiloh Theberge & Tara Walker

IN BRIEF

In recent days and weeks, as we have learned more about the substantial increase in contagiousness of the Delta variant of COVID-19 and the vaccine hesitancy around the country, there are many private employers and government agencies that are mandating COVID-19 vaccines. Here, we discuss the recent legal requirement mandating COVID-19 vaccines for ME healthcare providers, dental offices, and emergency medical services and strategic considerations for other, non-healthcare employers that may elect to mandate vaccines.

Healthcare Entities, Dental Offices, and Emergency Medical Services
Latest Developments Regarding Mandatory COVID-19 Vaccinations

Effective August 12, 2021, the ME Department of Health and Human Services (“DHHS”), Center for Disease Control & Prevention (“CDC”) issued an Emergency Routine Technical Rule (“Emergency Rule”) adding COVID-19 vaccination to the list of required immunizations for “Designated Healthcare Facilities” as defined in the Rule. The Emergency Rule also added dental offices and emergency medical services organizations to the types of entities that must follow the COVID-19 vaccination standards. The Emergency Rule provides that Designated Healthcare Facilities, dental offices, and emergency medical services organizations must require proof of COVID-19 vaccinations from their employees. A copy of the Rule, with the DHHS mark-ups against the preexisting Rule can be found here.

Employees of the covered organizations have until September 17, 2021 to receive their final dose of a two-dose vaccine or to receive the single-dose Johnson & Johnson vaccine, in order to meet the requirement that they be “fully vaccinated” before October 1, 2021. If employees are obtaining the Moderna vaccine, this means they should be getting their first dose by Friday, August 20, or the first dose of the Pfizer vaccine by Friday, August 27. The one-dose Johnson & Johnson vaccine can be received on or before Friday, September 17.

If employees cannot provide proof of vaccination before October 1, the employer will be expected to exclude that employee from the work site. Failure to comply may affect the employer’s licensing. Previously available religious and philosophical vaccination exemptions were removed from ME law in 2019. The only exemption that remains under the law, as of September 1, 2021, is “a medical exemption” that is available to an individual “who provides a written statement from a licensed physician, nurse practitioner or physician assistant that, in the physician’s, nurse practitioner’s or physician assistant’s professional judgment, immunization against one or more diseases may be medically inadvisable.”[1]

However, the Emergency Rule may require the covered health care employers to exclude from the work site any employees — even those with medical exemptions — who pose a danger of COVID transmission. It appears that the CDC has deemed any employee who is not vaccinated or otherwise immune from COVID-19 to pose such a danger to others.
We look forward to further guidance from the CDC on this and other aspects of the Emergency Rule.

[1] 22 M.R.S. § 802(4-B).

Strategic Considerations for Non-Healthcare Employers

As the rates of COVID-19 infections increase and we have learned more about the effects of the Delta variant, many employers, even outside of the healthcare field, are choosing to mandate vaccinations for employees and/or customers to prevent the spread of the virus. Indeed, as of Friday, August 13, the Occupational Health & Safety Administration (“OSHA”) has provided guidance for employers in the area of COVID-19 vaccinations.  Any employer who is contemplating mandating vaccines for its employees or customers should have written policies and processes in place to ensure compliance with the most up-to-date guidance and laws in this area, including handling situations involving individuals with disabilities or sincerely held religious beliefs. Whether employers should mandate vaccines depends on several strategic considerations, including how it will affect your workforce, whether you can accommodate remote work, and the extent to which social distancing may be effective in your work environment.

Bottom Line

Given the fact-specific nature of these matters, employers should consult with legal counsel to consider approach, strategy and best practices on implementing vaccination mandates.

To learn more, visit our HealthCare or Labor & Employment Practice Group webpages or contact us with questions here.