The Construction Advantage

Mills Administration Vaccine Mandate Impacts Construction Industry

By Benjamin Dexter

On August 12, 2021, the Mills Administration put into effect an amendment to a pre-existing ME DHHS rule addressing immunization requirements for health care workers in the state of ME. The Rule has been in place for nearly 20 years, and has required health care workers to be immunized against diseases such as measles, mumps, and hepatitis B.

In light of the COVID-19 pandemic, the Rule was amended to include the COVID-19 vaccine among the list of required immunizations. The Rule now requires employees of most types of health care facilities to obtain an immunization against COVID-19. If an employee does not obtain the vaccine, the health care facility must bar them from being physically present in the workplace.

The Rule allows for a medical exemption but does not allow any other exemption. The deadline to obtain the COVID-19 vaccine is October 31, 2021, after which non-immunized employees must be barred from the workplace unless they have a legitimate medical reason not to be vaccinated.

Although it seems unrelated to the construction industry, the Rule has already affected contractors in ME. Because the Rule broadly defines “employees” to include any person who performs any service for a health care facility for wages, and explicitly includes independent contractors, a construction contractor that engages in any services for a health care facility likely falls under the Rule. This means that a contractor or subcontractor doing any construction, remodeling, repair, or other projects for a hospital, medical practice, dental practice, or other type of health care facility will be required to be immunized against COVID-19 in order to do work at the health care facility.

In addition, the Rule requires proof of the immunization. A health care facility must be able to show DHHS immunization records for all employees and independent contractors, and the records must include the month and year the immunization was administered. For any contractors working with hospitals or other health care facilities, a best practice will be for each contractor and subcontractor to provide a certificate of immunization directly to the health care facility. If the contractor or subcontractor qualifies for a medical exemption, they may instead provide a letter from a medical professional explaining the exemption.

The impact on the construction industry in ME will hopefully not last forever. The Rule’s COVID-19 vaccination requirement will only last as long as DHHS has declared a public health emergency. ME DHHS declared a public health emergency on July 21, 2021, and it is coterminous with the public health emergency declaration of the U.S. Department of Health and Human Services, which was recently renewed. When either ME or the Federal DHHS ends the declaration of public health emergency, then the COVID-19 vaccine requirement will no longer be in place.

In contrast to ME, New Hampshire recently amended NHRSA 141-C to prevent any person from being compelled to obtain a vaccine in order to access or receive any public benefit or service. There are some exceptions, such as public schools, which will still require certain vaccinations for enrollment. Relevant to the construction industry, New Hampshire’s mandate ban does not apply to nursing homes, hospitals, or medical facilities operated by the State of New Hampshire or New Hampshire counties or municipalities—while those facilities could mandate that employees become vaccinated, it is unclear whether they could bar unvaccinated independent contractors, including construction workers, from the worksite.

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