Construction workers in medical settings fall under Janet Mills' vaccine mandate

Nov. 1—Gov. Janet Mills' vaccine mandate for health care workers applies to construction workers in some medical settings, with industry leaders waiting to see how broadly the state enforces it after it took effect on Friday.

The state's mandate, which withstood a challenge in the U.S. Supreme Court, applies to workers in medical settings whose activities could pose a significant threat to transmitting COVID-19 because of the nature, duration and location of their work, according to the Maine Department of Health and Human Services.

The agency, which is charged with enforcing the mandate, wrote the rule broadly to include contractors and vendors in health care settings including hospitals, Benjamin Dexter, a lawyer with Bernstein Shur, said.

"With the mandate only recently in place, we have yet to see whether DHHS will broadly enforce [it] or not," he said.

It is unclear how the mandate will affect the construction industry. While backlash to the requirement has been loud amid a worker shortage that has hit the health care industry hard, it led to a sharp increase in vaccination rates across the sector.

A DHHS spokesperson said the agency will prioritize violations in settings that present significant threats to public health and safety of patients, facility residents and health care workers.

"DHHS doesn't intend to use its enforcement resources to address contractors and vendors whose activities do not present a significant threat to the transmission of COVID-19 in light of the nature, duration and location of their work," the spokesperson said.

In August, the Democratic governor's administration amended an existing DHHS rule governing immunization requirements for health care workers to include the COVID-19 vaccine. That rule has been in place for nearly 20 years and requires health care workers to be immunized against diseases including measles, mumps and hepatitis B.

The rule requires employees of most types of health care facilities to be fully vaccinated against COVID-19 or risk being fired. There is a medical exemption, but unlike recent rules in other states, the mandate does not allow for a testing alternative for workers who do not get vaccinated.

The DHHS definition of "employees" includes any person who performs any service for a health care facility for wages, Dexter wrote in a newsletter published Thursday. It includes contractors and subcontractors performing any construction, remodeling, repair or other projects in a hospital, medical practice, dental practice or other health care facility.

The medical facility also must be able to show immunization records for all employees and independent contractors. The vaccination requirement will last as long as DHHS has declared a public health emergency.

Hospitals frequently undergo repairs and some are in the midst of or planning major expansions. For example, Maine Medical Center in Portland, the state's largest hospital, started a six-year, $536 million modernization project in 2018 that will include 128 new patient rooms and 19 new procedure rooms for surgeries and other complex treatments.

While 95 percent of Maine Medical Center's own hospital employees were vaccinated as of the end of September, according to Maine Center for Disease Control and Prevention data, the hospital's parent now will expand that requirement more broadly.

"We are working within DHHS guidance to require vaccination or a valid medical exemption for certain of our contractors whose work requires them to be onsite at our facilities," John Porter, a MaineHealth spokesperson, said.

The number of health care workers leaving their jobs due to the mandate is not yet clear. At Central Maine Healthcare in Lewiston about 5 percent of the system's 3,000 employees have left due to the mandate, spokesperson Jim Cyr said, with higher vacancy rates attributable to the mandate at residential care providers.

"It's too early to tell what kind of impact this will have in construction," Matt Marks, CEO of the Maine chapter of the Associated General Contractors of America, said.

The bigger impact is likely to come with a federal mandate whose details are being worked out by the Occupational Safety and Health Administration. President Joe Biden announced the sweeping vaccine and testing plan in September with few details.

It could affect more than 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 vaccinated. Lawyers expect more legal challenges with that mandate that could also reach the U.S. Supreme Court.