The Maine Department of Labor (DOL) announced on Sept. 17 that the state's public sector employees will be subject to President Joe Biden's COVID-19 vaccine mandate due to Maine's state plan agreement with the federal government.
On Sept. 9, Biden directed the U.S. Occupational Safety and Health Administration to develop a rule requiring all private employers with 100 or more employees to ensure their workforce is either fully vaccinated for COVID-19 or subjected to weekly testing. President Biden's plan also calls for employers to provide paid time off for employees to get vaccinated. Since OSHA has not yet issued the Emergency Temporary Standard (ETS), it is unclear whether the employer or employee will be required to pay for testing or whether time spent testing should be considered compensable time.
The Maine DOL stated in its press release that it "sought clarification from OSHA about the rule's applicability to public employers because, under longstanding State law and a 2015 agreement with the Federal government . . . Maine is required to adopt and enforce for public employers all of OSHA's occupational safety and health standards."
As noted in the press release, "Maine is one of 26 states and two territories to have a state plan agreement with the Federal government." Due to the agreement, public sector employers with 100 or more employees in Maine will be required to follow the OSHA ETS on COVID-19 vaccinations and testing. Covered employers will include state, county, and local governments as well as public school systems.
Considering the Maine DOL's announcement – and pending the release of OSHA's ETS and the outcome of various expected legal challenges to it – all public and private employers in Maine with 100 or more employees should prepare to implement vaccination requirements or weekly testing programs likely before the end of 2021.
Maine's healthcare industry is already subject to a state COVID-19 vaccination mandate requiring all healthcare workers to be fully vaccinated by Oct. 1 with enforcement beginning on October 29. This includes all employees of hospitals, nursing homes, EMS organizations, dental practices, and other healthcare facilities regardless of size.
Once OSHA releases its ETS—no set timeframe for its publication in the Federal Register has been announced—the Maine Board of Occupational Safety and Health must adopt and enforce the forthcoming rule within 30 days of its release.
This is a rapidly evolving subject still rife with uncertainty.
Steve Silver and David Strock are attorneys with Littler Mendelson in Portland, Maine. © 2021 Littler Mendelson. All rights reserved. Reposted with permission.
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