Maine-based employers quickly instituted COVID-19 vaccination mandates over the past week as the delta variant spreads and almost half of Maine counties fell under federal mask-wearing recommendations as of Friday.
The law is on their side, but they need to move carefully, legal experts say.
New requirements follow vaccination mandates for federal workers and contractors announced by President Joe Biden last week as he tries to get more Americans vaccinated. In Maine, the public university system, College of the Atlantic, MaineHealth, Northern Light Health and other colleges and hospitals are requiring that employees be vaccinated.
Businesses are also making their own rules. A few Maine restaurants, including Little Giant in Portland and the Portland Hunt & Alpine Club, asked customers via Facebook to be vaccinated if they want to eat indoors. Little Giant drew criticism online for “medical discrimination.”
“We’re doing a soft ask, but it’s in preparation for what we expect to be, at some point, checking people’s vaccine cards,” Andrew Volk, owner of the Portland Hunt & Alpine Club, said. Other cities, including New York, already have mask mandates and customers can prove vaccination using a phone app.
One point of contention is that vaccines are authorized for emergency use only. U.S. Food and Drug Administration rules allow individuals to refuse unapproved products. The FDA is moving to permanently approve the Modera, Pfizer and Johnson & Johnson vaccines.
Vaccine mandates have already spawned legal challenges in other states that have largely proven unsuccessful. Employees of Houston Methodist Hospital tried to sue the Texas hospital system, but a federal judge dismissed that case. Another federal judge in Indiana blocked a challenge by students alleging an Indiana University rule mandating both students and staff get the vaccine violates their constitutional rights.
Here, the University of Maine System and College of the Atlantic reversed earlier decisions to wait for permanent approval and went ahead this week with vaccine mandates for students as cases rise. COA President Darron Collins on Thursday cited changing assumptions around COVID-19 because of the delta variant, the evolving legal understanding and the need for clarity in planning.
Some 66 percent of Mainers support requiring everyone to get a COVID-19 vaccine, according to the Covid States Project. Still, many of Maine’s small businesses will take a wait-and-see attitude to avoid the same backlash they experienced over state-required face coverings earlier in the pandemic, Lowe said. Others are holding off on vaccine mandates because of staffing shortages.
But employers have a right to know whether their workforce is vaccinated, Peter Lowe, an employment and labor lawyer with Lewiston-based Brann & Isaacson, said. He recommends that they respect confidentiality and consider incentivizing workers to get a vaccine.
“Employers don’t want to intrude on or invade privacy, but it’s important to gauge what the vaccination rate is in your workplace,” he said.
Support for vaccine mandates dates back more than 115 years to a case in which the U.S. Supreme Court upheld the authority of states to enforce compulsory vaccines. Healthcare systems have also mandated influenza vaccinations, Lowe said.
The Equal Employment Opportunity Commission recently updated its vaccine guidelines to say that employers may require vaccines for all employees in the workplace, but they also must provide appropriate accommodations for those unable to be vaccinated because of disabilities or religious beliefs. That can include requiring a face covering, using plexiglass barriers, requiring period COVID-19 tests or remote work, Lowe said.
The Maine Human Rights Commission also says employers can ask employees to get vaccinated to enter the workplace.
Employers need to be careful how they ask employees about their vaccination status, Lowe said. If someone says they haven’t been, he advises not asking them why to avoid gleaning confidential information.
“This doesn’t follow an easy playbook,” Lowe said.