Many Maine employers have two months to fully comply with new federal requirements that workers get a COVID-19 vaccine or submit to weekly testing for the disease, but some said they are still reviewing details and awaiting answers.

The U.S. Department of Labor’s Occupational Health and Safety Administration on Thursday released a rare “emergency temporary standard” that applies to all private companies with at least 100 employees. The standards also will apply to public sector employers in Maine because of a longstanding state law and a 2015 agreement with the federal government known as a “state plan,” in which Maine is required to adopt and enforce all OSHA standards. It’s still unknown, however, whether local governments with fewer than 100 workers will be subject to the mandate.

Under the rules, employers have to check and keep records of every employee’s vaccination status. If employees are unvaccinated, they have to undergo COVID-19 testing at least weekly and wear a mask indoors.

Workplace infections helped fuel the coronavirus pandemic in America, and the new requirements could result in 23 million more people getting vaccinated and avoid thousands of deaths and hundreds of thousands of hospitalizations from COVID-19, the labor department said.

“We must take action to implement this emergency temporary standard to contain the virus and protect people in the workplace from the grave danger of COVID-19,” U.S. Labor Secretary Marty Walsh said in a statement.

Most of the requirements go into effect by Dec. 4, including vaccine record maintenance, reporting work-related COVID-19 fatalities, providing support for employee vaccination and making sure anyone testing positive for the disease is removed from the workplace until they meet certain health criteria. Affected employers will have to comply with the testing rules by Jan. 4.

Also on Thursday, the U.S. Centers for Medicare and Medicaid Services announced that all health care workers at facilities nationwide that receive Medicare or Medicaid funding must have received their COVID-19 vaccinations by Jan. 4.

In Maine, most health care workers already were required to comply with a state mandate by last Friday. However, some workers who were exempt from the rule, such as school health clinics and group homes for children, might have to comply with the federal mandate.

ARE COMPANIES PREPARED?

Large employers in southern Maine contacted Thursday said they were reviewing the rules and offered few details about their plans to comply. The requirements for private-sector employers will apply to about one in three Maine workers – about 170,000 – a smaller proportion of private sector employees than for the nation as a whole.

L.L. Bean, one of the state’s largest companies, with more than 4,000 workers and headquarters in Freeport, said it has encouraged and helped employees to get vaccinated and now has an inoculation rate well above state and national averages. Eighty percent of Mainers 12 and older are fully vaccinated, according to the Maine Center for Disease Control and Prevention.

“We will continue to be proactive on this front and will adhere to all government requirements as we have throughout the pandemic,” Jason Sulham, L.L. Bean’s manager of public affairs, said in a statement.

Catholic Charities, which employs about 500 people across Maine, also has proactively tried to get staff vaccinated, with incentives such as gift cards.

“I think we have a pretty high rate of vaccination, not 100 percent, but we are feeling pretty good going into this required stage,” Chief Communications Officer Judy Katzel said.

Meeting a weekly testing requirement could be difficult for the nonprofit to manage, since it has many employees working in different, sometimes remote parts of the state or roaming to assist clients.

“That is going to be more difficult for companies that will be more spread out like ours,” Katzel said.

Bangor Savings Bank implemented policies two months ago that preceded the federal rules. The company did not mandate vaccines for its existing workforce, but all new hires since Sept. 7 have been required to show proof of vaccination, and unvaccinated workers are required to take tests weekly, said Community Relations Manager Jaclyn Fish.

“If anyone cannot or chooses not to vaccinate, we fully respect their personal decision and will address each individual employee situation with compassion as required and applicable,” Fish said.

LABOR GROUPS AMBIVALENT

The Maine AFL-CIO, the state’s largest coalition of labor unions, has no official position for or against vaccine mandates, spokesman Andy O’Brien said.

“While we strongly believe that workers should get vaccinated, they also should have a voice in how these rules are implemented,” O’Brien said. “That’s why workers need unions to ensure their interests are protected, that proper accommodations are made for them and they have a voice on policy changes like vaccine mandates.”

Employers have awaited details of the mandate since President Biden announced it in September.

“There was very little out there about what would be in it other than the vaccination mandate and testing,” said Peter Lowe, an employment attorney at Brann and Isaacson in Lewiston.

Still, many affected employers were likely planning how to respond, he added.

“I think the limited number of large employers in Maine are most likely to have been anticipating this at the highest level,” Lowe said. “It is the midsized and smaller employers who are playing the wait-and-see game and are now looking at this and saying, ‘How does this apply to us and what are we going to do?’ ”

The issue of who bears the cost of the weekly testing remains murky. The standards say that employers are not responsible to pay for or provide testing or face coverings to workers who choose to not get vaccinated. However, state and local laws and collective bargaining agreements supersede that rule.

Without a deeper dive into the rules, Lowe said he isn’t sure if that means employers just don’t have to pay for the test itself, or whether they will not have to pay employees for time off to get tested.

On the flip side, employers have to give paid time off to workers to get the vaccine and to recover if they have any side effects.

Some might be reluctant to enact firm rules without the resolution of the inevitable lawsuits against the federal rules and appeals to high courts, Lowe said, adding that emergency temporary standards such as the vaccine mandate are exceedingly rare.

Republican leaders in some states are fighting the mandate with new laws and orders to exempt workers, threatening companies that follow the rules and preparing litigation. Vaccine mandates for health care workers in Maine were upheld by federal circuit courts. Last week, the U.S. Supreme Court rejected an emergency appeal to block the requirement.

Putting new requirements on workers at the same time employers are having trouble hiring also may present issues, Lowe said. A feared wave of resignations over vaccine requirements for health care and public safety workers has not materialized.

“Even if the numbers are relatively small in terms of people who decide to leave or won’t be tested or vaccinated, those can have an impact,” Lowe said. “I don’t think it is hyperbole to say there is concern about how this will impact availability of labor and retaining a workforce.”

PUBLIC SECTOR EFFECT UNCLEAR

It remains unclear how the mandate will apply to state, county and local government and school district employees in Maine.

Counties, municipalities and school districts are expected to have vaccine mandates in place by Dec. 4 and in practice by Jan. 4.

But while the OHSA mandate applies to private sector employers with 100 or more workers, it’s uncertain whether the same threshold will apply to counties, municipalities and school districts in Maine.

Maine’s Board of Occupational Safety and Health has yet to adopt the federal emergency temporary standard for the public sector.

“That question has not yet been decided,” said Jessica Picard, spokesperson for the Maine Department of Labor.

Maine has 30 days to adopt a standard for public sector employers, Picard said. The board will meet to decide the matter on Dec. 2.

“OSHA’s standards are considered minimum requirements, so states may implement more rigorous standards but cannot implement less rigorous standards than those set out by OSHA,” Picard said. “More information on the public sector requirements will be available when (the board) adopts the standard.”

There is some worry among municipal leaders that larger communities will lose employees to smaller towns if the vaccination mandate isn’t applied across the board, said South Portland City Manager Scott Morelli.

Morelli said that’s less of a concern in South Portland, where 99 percent of residents are vaccinated, according to the state’s COVID-19 vaccination website.

“We started a while ago asking employees to voluntarily provide proof of vaccination and we’ve already had about 100 responses,” Morelli said. “We’ll ramp up that collection and hopefully hear from everyone else.”

Morelli figures about 90 percent of South Portland’s 450 employees are already vaccinated, and he hopes the rest will fall in line. When the state imposed a vaccine mandate recently for health care workers, including firefighter/paramedics, South Portland lost only one of 70 department members, he said.

Morelli is sympathetic to other municipalities where vaccine uptake is lower and the chances of losing employees is greater. But South Portland won’t risk getting a $14,000 fine for each unvaccinated worker, as the mandate allows, and it won’t be paying for employees to get tested weekly. Overseeing unvaccinated employees has the potential to become costly, time-consuming and unmanageable, he said.

“It’s not something we’re going to play chicken with,” Morelli said.

Portland, Maine’s largest city, implemented its own vaccination policy for non-union employees in September and has been bargaining the requirement with eight municipal unions since August. It requires more than 1,300 city workers to be vaccinated or do weekly testing, spokeswoman Jessica Grondin said.

Another unclear aspect of the public sector mandate is whether it will apply to elected officials and volunteers who are paid stipends, including city councilors and on-call firefighters.

“That could bump some municipalities over 100 employees,” said Cathy Conlow, executive director of the Maine Municipal Association.

Conlow attended a Zoom meeting Thursday with federal labor officials. She expects clarifying guidelines to be issued in the coming days.

Those guidelines will be welcomed by Jim Gailey, administrator for Cumberland County, which has about 400 employees at its jail, courts and other offices.

Gailey was going over the OSHA mandate Thursday.

“It’s 400 pages,” Gailey said. “It will take us a little time to understand the requirements.”

Staff Writer Joe Lawlor contributed to this report.

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