Maine public sector employers – including state, county and local governments, and public school systems – with at least 100 employees must require workers to be vaccinated against COVID-19 or submit to weekly testing, the state Department of Labor said on Friday as case counts continued to rise.

President Biden announced last week that all employees of companies with 100 or more workers will be required to get vaccinated or take weekly tests to determine whether they have COVID-19 in an effort to stop its spread. The requirement carries penalties of $14,000 per violation, which would be charged to employers.

While that applies to the private sector nationwide, it also applies to Maine’s public sector employers with 100 or more workers 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 Occupational Safety and Health Administration standards, the labor department said. 

Maine is among 26 states and two territories that have such agreements with the federal government.

Along with the roughly 170,000 workers at 700 companies subject to the new rule in Maine, the rule also applies to employees of state and local governments, public school systems, the University of Maine System, Maine Community College System, Maine Maritime Academy, Maine Turnpike Authority and sewer and water districts in the state. 

The rule also mandates that employers must give workers paid time off for vaccination. Federal employees will have to receive the vaccine and cannot opt to test out instead.

It is still unclear how many Maine workers will be impacted by the new requirement, or how a town or school’s employee count will be determined. For example, it’s unknown whether K-12 workers will be counted by school or by district, or whether police and fire departments will be counted alone or in combination with other municipal staff. State officials said they expect more clarity once OSHA publishes the guidelines.

The Maine Board of Occupational Safety and Health is required to adopt and enforce OSHA’s rule for public employers within 30 days of the rule’s release. It is unknown when that will happen.

Currently, the roughly 11,500 employees in the state’s executive branch, which includes those in the governor’s office, all departments, constitutional offices and certain quasi- or independent state agencies, are required to be vaccinated or wear a face covering when at work, according to Kelsey Goldsmith, director of communications for the state Department of Administrative and Financial services. Employees may remove face coverings outdoors.

While it awaits the final rule to be published, the department will “continue to encourage all executive branch employees to get vaccinated and will continue to provide resources to help our employees – including frequent communication about vaccination availability and paid leave for those whose vaccination appointment falls within their scheduled work hours,” Goldsmith said in an email.

RULE GETS MIXED REACTION

Mark Bernard, executive director of the American Federation of State, County and Municipal Employees Council 93, said in a statement that he thinks vaccines are the safest and most effective way to reduce the spread of COVID-19 and variants of the virus, but he also believes “any policy on vaccinations must be established through discussions and negotiations with the union.”

In Maine, AFSCME represents roughly 2,600 workers in state, county and municipal government, including state mental health and corrections workers, and about 560 public sector workers in Portland, said Jim Durkin, the union’s director of legislation, political action and communications.

“While a majority of our members may have already received a vaccination, many others have understandable concerns that we believe should be addressed in advance of any policy implementation,” Bernard said.

He urged government leaders to work with the union to reach a mutually agreeable policy on vaccinations, including regular testing for those who are opposed to mandatory vaccines.

“Should we be unable to achieve that goal, we will be reviewing all of our options under the law,” Bernard said.

Dean Staffieri, president of the Maine Service Employees Association-Service Employees International Union Local 1989, said in a statement that the union is “interested to see additional details regarding the timing and scope of the standard,” but did not express an opinion on the mandate one way or the other, beyond voicing support for the vaccine.

“MSEA believes that the best way to save lives is for everyone to get vaccinated, and we encourage everyone who is able to do so to get the vaccine,” Staffieri said.

The union represents over 13,000 employees across the state, with members working for the Maine Community College System, Maine Maritime Academy, Maine Turnpike Authority, several municipalities and all three branches of Maine state government.

South Portland City Manager Scott Morelli said he had anticipated the mandate would apply to municipal employees and welcomed the confirmation from the labor department.

“Now that we have it, we will work in partnership with the Maine (labor department) to ensure we implement this mandate fully and faithfully,” he said.

Based on a nonscientific worker survey, Morelli estimates that at least 90 percent of South Portland employees are fully vaccinated.

“While my hope is those who are unvaccinated will get the vaccine as a result of this mandate, I expect some will not, and so we will have to deal with the logistical challenges of having those employees submit weekly COVID test results showing they are negative,” he said. “It’s doable, and it is in the name of public health, but it will be an added burden.”

SUPERINTENDENTS ON BOARD

School superintendents said the labor department’s clarification is helpful as they work to keep both students and staff healthy amid the surge in COVID-19 cases.

Jeremy Ray, superintendent of the Biddeford, Saco and Dayton school districts, said the school boards were getting ready to take the step next week to say employees either have to be vaccinated or participate in pool testing. While he now has more clarity on what will be required under the federal mandate, Ray said he still will need information about whether pool testing will be a sufficient weekly test for employees who choose to remain unvaccinated.

Data released this week by the Maine Department of Health and Human Services and the Department of Education showed that about 76 percent of all school staff in Maine are fully vaccinated against COVID-19, but the percentage of vaccinated staff varies widely by school, ranging from zero to 100 percent.

Ray said there are concerns among the districts about whether the Biden mandate could impact staffing levels, but that those same concerns arose when they were considering whether to put the local testing-or-vaccine option in place.

“We’re hoping we’ll continue to get a high level of participation in (vaccination), which we know will help us move one step closer back to normal,” he said.

In RSU 23 in Old Orchard Beach, Superintendent John Suttie was anticipating the federal mandate would apply to all district employees

“It makes all the sense in the world that people who work with a population that is not yet eligible for vaccination should certainly be required to be vaccinated if one is available,” he said.

Suttie said any type of clarity is beneficial as school districts and municipalities try to navigate the pandemic. Officials in RSU 23 had discussions about mandates and testing, and the district welcomes a broader policy that doesn’t pit communities against each other, he said.

“It would be a difficult thing to begin doing when no one else is doing it or there is no directive,” he said of mandating vaccination or weekly testing.

NO CHANGE FOR SOME SCHOOLS

The University of Maine System, which employs more than 5,500 people across eight schools, recently adopted a new testing and vaccination protocol that Chancellor Dannel Malloy said brings the system in line with the new mandate: Be vaccinated or be subject to a weekly test. 

“If you fail to comply, ultimately, you lose your job,” Malloy said. More than 80 percent of the system’s staff are already vaccinated.

The Maine Community College System has been working on a similar, even more rigorous requirement for several weeks.

Under the employee vaccine protocol, all community college employees in Maine must show proof of vaccination or undergo twice-weekly COVID-19 testing, in addition to masking and distancing requirements, said Noel Gallagher, director of communications and public affairs.

As of Friday, the community college system had signed agreements with five of the six bargaining units and expected to sign the final agreement Monday.

There are approximately 1,460 full- and part-time faculty and staff between the seven community colleges in the system.

Maine Maritime Academy likely won’t have to change anything to be in compliance, though school officials are seeking clarification. According to Janet Acker, the school’s chief of staff, the academy implemented weekly testing for unvaccinated staff several weeks ago, before the start of the school year. There are roughly 300 employees at Maine Maritime Academy, and over 95 percent of them are vaccinated.

Friday’s announcement came as COVID-19 cases in Maine continue to rise.

The state reported 715 cases and two additional deaths on Friday. There were 201 people hospitalized and 76 in intensive care, one of the highest hospitalization numbers and the highest ICU figure seen since the start of the pandemic.

The spike is being driven by the highly contagious delta variant, which is mostly taking a toll on the unvaccinated population in Maine and nationwide. About 64.5 percent of the state’s population has been fully vaccinated, including 73 percent of those 12 and over who are eligible to be vaccinated.

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