One-third of Maine’s private workforce would be affected by President Joe Biden’s sweeping vaccine and testing plan announced on Thursday.
The plan, previewed Thursday by White House press secretary Jen Psaki and other officials, will mandate all employers with more than 100 workers to require their workers to be vaccinated for COVID-19 or tested for the virus weekly. That will affect up to 169,000 workers in Maine and an estimated 80 million Americans, according to state and federal data. The 17 million workers at health facilities that get federal Medicare or Medicaid will have to be fully vaccinated.
A recent mandate from Gov. Janet Mills requiring health workers to be vaccinated has drawn protests throughout the state, but a poll by the COVID States Project found that nearly two-thirds of Mainers support a universal COVID-19 vaccine mandate.
The federal requirement would be enacted in a forthcoming rule from the Occupational Safety and Health Administration that carries a penalty of up to $14,000 per violation. Companies would have to give workers paid time off to be vaccinated. It is not clear when the rule will go into effect.
It will likely take at least several weeks until OSHA releases an emergency temporary standard rule, according to lawyer Robert Brooks, a partner at Verrill Data. Those rules are issued when something is deemed a “grave danger” to workers.
The rule does not require any public input, he said, even though some may question whether it is overreach by the federal government. OSHA released a different emergency temporary standard rule in June covering safety protocols for health care workers. The law has historically been on the side of employers to institute vaccine mandates.
“Historically courts have come down in favor of compulsory vaccinations, but this is a fairly broad mandate that will undoubtedly be tested in the courts,” Hannah Wurgaft, an associate labor lawyer at Brann & Isaacson, said.
She said the new mandate is generally consistent with an employer’s legal obligation under OSHA to provide a “safe and healthful workplace free from recognized hazards.”
“That said, the federal mandate will be litigated and may reach the Supreme Court,” she said. “In the meantime, employers should be prepared to work with employees requesting reasonable accommodations.”
The mandate likely will cause some employees to quit at a time when businesses already are suffering from worker shortages, Dana Connors, president of the Maine State Chamber of Commerce, said. He also is concerned with the implementation, responsibility, accountability and enforcement of the mandate, which could levy stiff fines on employers.
“The president’s plan places the ultimate responsibility with the employer,” he said.
Many large employers and government entities already have been requiring vaccinations or regular testing, said Curtis Picard, president of the Retail Association of Maine. The public university system, College of the Atlantic, MaineHealth, Northern Light Health and other colleges and hospitals are requiring that employees be vaccinated.
“While there are vocal minorities pushing back, the data shows that vaccinations are increasing among those unvaccinated employees,” he said.
The Biden administration said the federal government will work to increase the supply of virus tests. It still is not clear who will pay for the tests or time off required to get them.
Biden’s plan also would double federal fines for airline passengers who refuse to wear masks on flights or on federal property per U.S. Centers for Disease Control and Prevention guidelines.
The Associated Press contributed to this report.