President Joe Biden speaks on Nov. 3 about vaccine availability following the FDA's approval of the Pfizer vaccine for children aged 5 to 11. Credit: Susan Walsh / AP

The federal vaccination or testing rules for businesses released Thursday sparked questions in Maine’s business and legal communities over a new religious exemption for health care settings that runs counter to state law.

The Occupational Safety and Health Administration issued a 490-page document detailing what is expected from businesses with 100 or more employees and gave a Jan. 4 deadline to comply. At the same time, the Centers for Medicare and Medicaid Services issued a set of rules for health care facilities. Both came a week after Gov. Janet Mills’ vaccine mandate for health care settings took effect in Maine.

The new OSHA rules allow for a testing exemption for unvaccinated workers. The CMS rules do not, in line with Mills’ mandate. But the CMS rules allow for a religious exemption that Maine does not, muddying how health care companies will allow qualifying employees to decline vaccines. The new rules could spur legal challenges to both them and Maine’s vaccine exemption law, legal sources said Thursday.

“Federal law normally trumps state law, but I’m not sure how this will settle out in Maine,” Steven Michaud, president of the Maine Hospital Association, said.

In May 2019, the Democratic governor signed into law a bill eliminating religious and philosophical exemptions for vaccinations in the state. The law was upheld by voters before the pandemic and has withstood initial challenges up to the U.S. Supreme Court, which declined to block it on religious grounds last week. But it is not clear how it will fare if the federal mandate is challenged after three conservative justices wrote a strong dissent in the Maine case. 

Outside of court, employers will be challenged on how to handle a potential religious exemption. The definition of what constitutes a religion is broad under federal law, and it is difficult for employers to assess whether an employee’s beliefs are “sincerely held,” Peter Lowe, a labor and employment lawyer at Brann & Isaacson in Lewiston, said.

“They’ll also need to collect some sensitive information and make judgment calls about the religious aspects,” he said.

For other businesses, OSHA’s new vaccine-or-test plan will affect up to 169,000 private-sector workers in Maine and an estimated 80 million Americans, according to state and federal data. Employers, many of whom are facing pandemic worker shortages, will need to enforce the new plan or face a $14,000 fine per violation. That could be costly for Maine companies, many of which have shortened hours or services already.

Larger companies must either require employees to be fully vaccinated or to be masked and tested weekly, although the company doesn’t have to pay for the testing. Maine businesses, including Portland-based financial technology company WEX Inc., are weighing the rules.

“We are determining how to best proceed but, as always, we will comply with all federal regulations,” Claire Clonan, vice president of human resources operations at WEX, said.

The plan contains some upsides for employers, including that they need not pay for tests and that the deadline is after the critical holiday season. Dana Connors, president and CEO of the Maine State Chamber of Commerce, said it looks like OSHA reached out to businesses for feedback on the sweeping plan since the White House previewed it in September.

“Knowing how important the retail industry is this time of year, and with a workforce shortage already, that was heartening news,” he said of the Jan. 4 deadline.

But workers who don’t want to be vaccinated may jump to smaller companies, Connors said. Maine health care workers already have quit or changed jobs as the state’s mandate went into effect. At Central Maine Healthcare in Lewiston, about 5 percent of the system’s 3,000 employees left due to the mandate, a spokesperson said. It is unclear to what degree the mandate could magnify exits.

OSHA rarely uses emergency standards, with Lowe saying 40 percent of the ones issued in the past have been changed or vacated by the courts because of a high standard requiring rules to be issued because of a “grave danger.”

“If there’s one guarantee, there will be an avalanche of litigation from all directions,” he said.

Opposition to the OSHA plan already are rippling across the country in more conservative states. As of Friday morning, attorneys general in 11 states, including New Hampshire, signed onto a lawsuit against the Biden administration challenging the mandates, according to the Associated Press.

The National Federation of Independent Businesses stopped short of threatening any action, saying it would closely review the plan and its deadlines, but it is opposed to the plan that it said “restricts the freedom of small business owners to decide how best to operate their own businesses.” 

The White House contended that vaccination requirements are good for the economy, and that helped send as many as 5 million American workers back to jobs. President Joe Biden cited “broad public support” in a Thursday statement.

Lowe advised businesses to plan to implement the federal rules even in the face of legal and other questions about whether they will in fact take effect.

“The risks are too high for an employer to ignore the rule or not be well prepared when those deadlines come into effect,” Lowe said.