Judge Jon D. Levy. Credit: BDN file photo

A federal judge on Wednesday refused to halt the implementation of Maine’s mandate that requires health care workers be vaccinated against COVID-19 by Oct. 29 or risk losing their jobs.

U.S. District Court Judge Jon Levy denied a motion for a preliminary injunction that argued the mandate violates the 1964 Civil Rights Act because it does not include a religious exemption. The mandate does include a medical exemption for those who cannot be vaccinated for medical reasons.

The judge found that the plaintiffs had not yet shown that they would prevail in the long run, one of the standards for granting the injunction. Another standard is that the preliminary injunction must be in the public interest, which Levy found the plaintiffs hadn’t shown.

“Stopping the spread of COVID-19 in Maine, and specifically stemming outbreaks in designated healthcare facilities to protect patients and healthcare workers, is a legitimate government interest,” Levy said. “For several reasons, the mandate is rationally related to this interest.”

The judge wrote that the vaccine mandate will raise vaccination rates in health care facilities that have been susceptible to COVID-19 outbreaks, which have primarily been the result of employees bringing the virus into their workplaces with them. Vaccinations of health care workers will reduce the risk of such outbreaks, Levy said.

“The state defendants have provided ample support demonstrating a rational basis for their adoption of the COVID-19 vaccine mandate as a requirement that furthers the government’s interest in protecting public health, healthcare workers, vulnerable patients, and Maine’s healthcare system from the spread of COVID-19,” the judge concluded.

Last month, a federal judge in Rhode Island came to the same conclusion Levy did.

Despite the legal battle, the governor’s mandate appears to be working as the Maine Department of Health and Human Services announced Wednesday that the number of vaccinated health care workers increased in September in advance of the mandate taking effect.

Vaccination rates for workers in hospital and outpatient surgery centers were over 90 percent. The rates for workers in assisted living facilities, intermediate care facilities and nursing homes was more than 80 percent.

During a September hearing on the motion to halt the mandate, Levy expressed concern that granting the injunction would also overturn a 2019 state law that ended religious and philosophical exemptions for all vaccines required for school children as well as other vaccination requirements for health care workers.

His decision does not affect that law, which passed the Legislature before surviving a people’s veto attempt at the ballot box in March 2020. The new rules associated with that law  — which have been written to apply to the COVID-19 vaccine — took effect last month.

Levy found that the history associated with the law’s creation “does not demonstrate animus toward religion.”

The 2019 law has never been challenged in court.

The Liberty Counsel, which filed the lawsuit in August in U.S. District Court in Bangor, claims it is representing more than 2,000 health care workers across the state. While employees may obtain medical exemptions to the vaccine requirement, there is no religious or philosophical exemption in the policy.

The organization on Wednesday asked the 1st U.S. Circuit Court of Appeals in Boston to issue an emergency injunction overruling Levy’s decision to keep the vaccine mandate from being enforced.

Liberty Counsel Founder and Chairman Mat Staver maintained Wednesday that Mills’ mandate violated the First Amendment.

“Governor Mills is clearly discriminating against health care workers with sincerely held religious beliefs. She cannot override federal law and dictate that they must inject an experimental substance into their bodies,” he said. “The Constitution does not disappear across state lines.”

Lindsay Crete, a spokesperson for Mills, said the governor welcomed Levy’s decision and that getting vaccinated is the best way to keep health care workers on the job.

“Every person in Maine who is seen by health care personnel has the right to expect — as do their families — that they will receive high-quality and safe care, which includes having their care providers be fully vaccinated against this deadly virus,” she said.

Maine Attorney General Aaron Frey, whose office defended the state in the lawsuit, said that he and his staff “will continue to vigorously defend the requirement that health care workers in Maine be vaccinated against COVID-19.”  

The Liberty Counsel also represents an Orrington church suing Gov. Janet Mills over state COVID-19 restrictions.

The religious organization argues that health care workers are protected from having to receive vaccinations they oppose for religious reasons under the Civil Rights Act of 1964. The policy also violates the First Amendment’s free exercise clause, the Liberty Counsel said.

Attorneys for the state and hospitals pointed out that other vaccines have been required for health care workers since 2002 by the Maine Center for Disease Control. Since then, all health care facilities have been required to obtain and maintain their employees’ proof of immunization against a variety of communicable diseases, including but not limited to measles, mumps, chicken pox, and — more recently — influenza, according to lawyers representing the state and hospitals.

Government defendants in the lawsuit are Mills and officials at the Maine Department of Health and Human Services, which includes the Maine Center for Disease Control and Prevention. Some of Maine’s hospital systems, including Northern Light Health, MaineGeneral Health and MaineHealth, along with Genesis HealthCare, which runs a number of nursing homes in the state, also were sued.

A similar lawsuit over the health care worker vaccine requirement filed by the Alliance Against Health Care Mandates against the state’s top health officials is pending in Kennebec County Superior Court.