Lawyers are telling large Maine companies to prepare to implement the federal government’s vaccination requirement for their workers, even though the legal status of the edict is still somewhat up in the air.

President Biden announced the new requirement for businesses with more than 100 employees in September, hoping to stem the spread of COVID-19 and provide guidelines for businesses to get their workers back into offices and factories around the country. But after the Occupational Safety and Health Administration published its rules in November, dozens of lawsuits challenging the mandate were filed.

Federal courts initially issued a stay of the rules, putting them on hold, but last week a federal appeals court lifted that order, meaning the rules are back on track to take effect. However, an appeal of that ruling has been filed with the U.S. Supreme Court.

That court has asked for more arguments on the appeal, indicating it may make a decision early next month on whether the new rules can take effect, said Shiloh Theberge, co-chair of the labor and employment practice group at the Portland law firm Bernstein Shur.

It’s estimated that the new rule will apply to about 170,000 Maine workers, roughly a third of the state’s workforce, and employers are going to have to move ahead despite the uncertainty, Theberge said.

She said many of the requirements of the new rule are set to take effect on Jan. 10, although the major piece – vaccinations for most and weekly testing for those who are exempt for health or religious reasons – is currently set to go into effect on Feb. 9.


Theberge said the new rules require large employers to prepare written policies on vaccinations and testing by early January. They aren’t simple one-paragraph statements, she said, and require employers to say how they will verify vaccinations, conduct testing and handle exemption requests.

“There are a lot of detailed requirements,” she said, and lawyers have had to talk to their clients about what they should be doing in the next few weeks even as those businesses also deal with a resurgence of the virus in Maine and around the country.

“We have been busy,” she said. “It’s been difficult.”

For instance, most employers need to plan for weekly testing of some employees, even if most have been vaccinated, because the labor shortage means it will be tough to find replacements for workers who are fired for refusing to get the shot.

“If it means you’re going to lose employees (who won’t get vaccinated), you might have to allow for the testing to avoid being short-staffed,” Theberge said.

The law allows exceptions, she said, for employees who work entirely off-site or outside.


Many large Maine employers say they have been pushing employees to get vaccinations since the vaccines became available earlier this year.

L.L. Bean, for instance has offered shots on-site, and its employee vaccination rates are above both state and national levels, said Jason Sulham, the company’s manager of public affairs.

He said the company will be proactive in adhering to any government requirements “as we have throughout the pandemic.”

Hannaford also pledged to make sure the supermarket chain is in compliance with state and federal requirements, a spokeswoman said.

“Since vaccines were made available, we have encouraged our associates to get vaccinated,” Ericka Dodge said. Hannaford also is monitoring the status of the federal requirement and “readying ourselves with implementation plans” once the new rule is place, she said.

Unum also is keeping an eye on federal and state vaccine rules, spokeswoman Natalie Godwin said, and the employee benefits company has also rolled out a tool to help human resources officers at large employers track compliance with the new rules. Its “Vaccine Verifier” helps employers keep track of and verify vaccinations, monitor test results and also manage record-handling, the company said.

Theberge said employers could just ignore the uncertainty over the federal rule and implement their own vaccine requirement. There is no federal law that bans employers from issuing their own vaccination requirements, she said. Some states have laws that ban companies from requiring vaccinations, she said, but Maine is not among them.

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