Employment law experts say Monday’s full federal approval of Pfizer’s vaccine will likely provide businesses in Maine with more confidence to require workers to get inoculated against COVID-19.

Whether such mandates become widespread in Maine – a state with one of the nation’s highest vaccination rates – remains to be seen as businesses try to balance workplace safety with employee morale, worker shortages and other challenges.

“I expect you will see more employers say, now that the emergency use authorization is off the table, we will go forward with a vaccine mandate. I don’t think it will be an onslaught,” said Peter Lowe, an attorney with Brann & Isaacson in Lewiston and Portland who advises businesses, schools and municipalities on employment law.

Previous court rulings had already made clear that businesses, schools and governments can impose vaccine mandates on employees to protect workers or the public even under “emergency use authorization” for the three COVID-19 vaccines available in the U.S.

With Pfizer receiving full authorization from the Food and Drug Administration, there is likely to be a stronger appetite among the vaccinated public as well as among some businesses to make vaccination or regular testing a condition of employment.

“Right now, a lot of employers are encouraging vaccination and providing incentives as well,” said Ali Tozier, an attorney with Murray Plumb & Murray in Portland who specializes in employment law. “And a lot of them are getting very high participation from their workforce, so they may not need to mandate it … But with the full approval, I do expect more employers to make it part of their policy.”

President Biden called on the private sector to “step up vaccine requirements” following his administration’s mandates on the federal workforce.

“If you’re a business leader, a nonprofit leader, a state and local leader who has been waiting for full FDA approval to require vaccinations, I call on you now to do that – require it,” Biden said during remarks at the White House. “Do what I did last week: Require your employees to get vaccinated or face strict requirements” for testing.

Maine and Connecticut are tied for the third-highest full vaccination rates in the country, after Vermont and Massachusetts, according to tracking by Bloomberg. More than 830,000 of Maine’s roughly 1.3 million residents have received their full regimen of doses, representing 70 percent of those age 12 or older who are eligible.

But vaccination rates vary widely by region. And the counties with the highest transmission rates in the state – Piscataquis, Penobscot, Waldo, Aroostook and Somerset – have lower vaccination rates than the southern coastal counties. Hospitalizations are also once again rising rapidly in Maine as the delta variant spreads, particularly among the unvaccinated.

Public health experts as well as state officials in Maine have said they hope full authorization will convince more people to get a shot, although it’s unclear if an FDA blessing will convince many of the vaccine hesitant. Ongoing polling by the nonprofit Kaiser Family Foundation found that 31 percent of the unvaccinated people surveyed said they would be more likely to get a shot after full FDA approval. But 57 percent of unvaccinated respondents were unsure whether any of the vaccines had gained full approval.

Dr. James Jarvis, incident commander for COVID-19 for Northern Light Health, said in a conference call with reporters Monday that the full FDA approval of the Pfizer vaccine will likely push more companies, colleges and other institutions to mandate the vaccine for their workers. Jarvis said he believes it will also boost vaccination by encouraging people who were hesitant and waiting for full approval to get their shots.

“We welcome this news. This is exciting for all of us,” Jarvis said. “Hopefully this will be another thing we can use to fight against the pandemic.”

Two weeks ago, the administration of Gov. Janet Mills announced that all health care workers in the state must be fully vaccinated by Oct. 1. The announcement came amid the latest surge in COVID-19 cases due to the more contagious delta variant, and followed similar announcements by several health care networks, including the state’s two largest, MaineHealth and Northern Light Health.

The decision has been controversial among some health care workers, however, most notably emergency responders. On Monday, dozens of firefighters, EMTs and others spoke out against the mandate during an emergency public hearing held by the Maine Board of Emergency Medical Services, which licenses personnel.

Hours after Monday’s FDA approval of the Pfizer vaccine, New Jersey Gov. Phil Murphy announced that all state workers as well as teachers would have to get vaccinated or undergo regular testing. New York City also updated its vaccination mandate on Monday for nearly 150,000 teachers and school staff by eliminating the testing option.

Mills’ office did not respond to a question about whether her administration is considering imposing a vaccination mandate on Maine state employees. Last week, when asked about a potential vaccine requirement for school staff, a spokeswoman for the governor said the administration was focused on health care facilities because of their critical roles in responding to COVID-19.

“The FDA’s full approval of the Pfizer vaccine is a very welcome milestone in our battle against this pandemic, reaffirming that the vaccine is safe and highly effective,” Mills said in a statement. “With the more dangerous and more transmissible delta variant driving a surge in cases and hospitalizations and threatening the lives of Maine people, there is no time to waste in getting your shot. Getting vaccinated may save your life, the life of a family member or friend, or the life of a child not yet eligible for a vaccine.”

Few public or private employers in Maine have opted for vaccine mandates to date, outside of the health care industry.

Dana Connors, president of the Maine State Chamber of Commerce, said not many member businesses have indicated to his organization whether full FDA approval would affect their workforce policies. Connors said he hopes the approval will encourage more individuals to get vaccinated and predicted it will “put everybody more at ease” on the question of vaccine safety.

“Every business will look at that from their own standpoint,” Connors said.

Municipalities have also been taking a wait-and-see approach.

Cathy Conlow, executive director of the Maine Municipal Association which represents towns and cities at the State House, said Monday that she was not aware of any other towns that followed Portland’s lead in announcing a vaccination requirement for city workers. She also doesn’t expect a uniform adoption of a vaccine mandate across the state, even with the FDA approval, because Maine’s municipalities vary so much in size and individual circumstances.

“All of them have figured out different ways to navigate the pandemic and offer services,” Conlow said.

Tozier said employers have an obligation under federal employment law to keep their workplaces safe, so the FDA’s endorsement of the Pfizer vaccine’s safety could boost businesses’ confidence in imposing mandates. But Tozier also acknowledged that employers face workforce shortages, employee morale considerations and a host of other factors that could play into a such a decision.

“It’s a tricky situation right now,” Tozier said.

Both Tozier and Lowe with Brann & Isaacson expect more employers to make vaccination a condition of employment when hiring new workers. They also said full FDA approval does not change the fact that, under federal law, workers can still seek exemptions from mandatory vaccination either under religious grounds or for medical reasons under the Americans with Disabilities Act.

Lowe added that while full authorization takes the “emergency use” objection off the table, he predicted that lawyers will inevitably come up with other reasons to challenge employers’ vaccination requirements. He also noted that many of the vaccination mandates announced on the national level have come from major corporations with deep pockets to fight any legal challenges.

“Whereas if you are a Maine employer of 15, 20, 25 or 50 (workers), one lawsuit could be a major expense or distraction,” Lowe said. “So it is a total different equation for a small or mid-sized company.”

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