Maine proposes dropping COVID-19 vaccine mandate for health care workers

Kayla Mitchell, 31, a registered nurse who works in the COVID intensive care unit, receives the hospital’s first dose of the COVID vaccine from Dr. Christina DeMatteo in Dec. 2020. Derek Davis/Staff Photographer

The Maine Department of Health and Human Services is proposing that the COVID-19 vaccine be removed from the list of required immunizations for health care workers.

The department says the vaccination remains an important tool to protect public health, but that the requirement for health care workers achieved the intended benefit of savings lives, protecting health care capacity and limiting the spread of the virus during the height of the pandemic.

Maine is one of four remaining states with some type of COVID-19 vaccine requirement in place.

“Since the beginning of the COVID-19 pandemic, Maine has followed the science in developing policies to limit the spread of the virus,” DHHS Commissioner Jeanne Lambrew said in a statement Tuesday. “Today, a robust body of evolving evidence tells us that this requirement achieved its goals of saving lives and protecting health at a crucial time. We continue to encourage all Maine people, including dedicated health care workers tending to Maine’s most vulnerable residents, to stay up to date on COVID-19 vaccination.”

The decision was welcomed by hospitals and other health care providers hit by worker shortages during the pandemic.

“This (vaccine) requirement protected our patients, caregivers, and hospital during the height of the pandemic,” said Steven Michaud, president of the Maine Hospital Association. “We support this science-based update to the rule and will continue to be guided by patient safety in our efforts to limit the spread of the virus and promote vaccination as a valuable tool to protect public health.”

The vaccination requirement for health care workers went into effect on Oct. 20, 2021. Health care workers upset by the requirement sued the state, arguing that it was their religious right to refuse the vaccine because of their belief that fetal stem cells from abortions are used to develop the vaccines.

The proposed rule change, filed Tuesday with the Department of the Secretary of State, is based on available clinical and epidemiological data about COVID-19, increased population immunity resulting from vaccination and prior infections, decreasing disease severity, improved treatments and declining infection and death rates, DHHS said.

It expects the rule will be published next Wednesday and be adopted by the end of the year following public comment. The department said it will exercise enforcement discretion regarding COVID-19 vaccination of health care workers during the rulemaking process.

EMS WORKERS SEPARATE

It remains uncertain, however, whether the proposal will be embraced by licensed emergency medical services personnel such as emergency medical technicians and paramedics.

Maine’s Board of Emergency Medical Services, a diverse group of doctors, nurses and paramedics, will consider adoption of the DHHS rule at its Aug. 2 meeting, said J. Sam Hurley, director of Maine’s Emergency Medical Services. He said the Board of Emergency Medical Services is an authority treated separately from health care employees, who typically work in hospitals or nursing homes.

Hurley said the board could follow DHHS’ recommendation, retain the current policy of requiring emergency medical service responders to be vaccinated, or revise its existing guidelines.

There are more than 1,700 licensed EMS workers in Maine, a number that has remained stable since the start of the COVID-19 pandemic, Hurley said.

“Throughout the pandemic, it has been imperative that our health care system evolve with our response to the pandemic,” Hurley said in a telephone interview Tuesday night. “As the science changes, we too must evolve with the science.”

Though there were some emergency medical services staffing shortages near the beginning of the pandemic caused by the COVID-19 vaccination requirement – mostly in smaller municipal departments in rural areas of the state – those numbers have since stabilized, Hurley said.

“The system as a whole did not experience a dramatic impact after the pandemic and we should mention that the immunization requirement was proven to have saved lives,” he said.

Maine requires the immunization of employees of health care facility to reduce the risk of exposure to and transmission of vaccine-preventable diseases. The state defines health care workers as those employed by a hospital, multilevel health care facility, home health agency, nursing facility, residential care facility and intermediate care facility for individuals with intellectual disabilities.

LAWSUIT TO PROCEED

The law firm representing the workers who sued the state said that it plans to forge ahead with the lawsuit.

In an interview Tuesday night, Horatio Mihet, chief litigation counsel for Liberty Counsel, a law firm based in Orlando, Florida, said the firm continues to represent seven Maine health care workers who lost their jobs because their religious exemptions from Maine’s COVID-19 vaccination mandate were denied.

The suit argues that the plaintiffs have a religious right to refuse the vaccine over their belief that fetal stem cells from abortions were used to develop it. Plaintiffs also argued that the state mandate was discriminatory by allowing for medical exemptions, but not religious ones.

In a unanimous ruling on May 25, a panel of three judges for the 1st U.S. Circuit Court of Appeals found U.S. District Judge Jon Levy had not properly weighed the possible public health impact of religious exemptions, which are not allowed by the state’s vaccination policy, and ordered the lower court to review that portion of the case.

“We intend to proceed with the lawsuit,” Mihet said, adding that Liberty Counsel also will seek a judicial decree in U.S. District Court in Maine that seeks to prohibit Mills from permanently enacting a vaccine mandate again.

Mihet said the state’s proposal to remove the vaccine mandate comes on the eve of a status conference Wednesday with the presiding judge to determine if and when the case should go to trial. Mihet said the DHHS proposal is a step in the right direction, but he is not convinced that Maine has seen the end of government-imposed vaccine mandates for health care workers.

“I have no joy in what the governor has done and we intend to hold her accountable,” Mihet said.

Republicans in the Legislature responded to the proposed rule change, saying that they had argued early on that the mandate would worsen the shortage of health care and EMS workers.

“We appreciate that Maine DHHS has recognized the mandate does not serve any public health interest and begun the rulemaking process to repeal it,” the statement said. “We urge the administration to expedite the process well before the stated end of 2023. Republicans hope that some of our health care and EMS heroes who left the profession – and in some cases even the state – can return to serve Maine once again.”

The Maine Health Care Association and Maine Medical Association joined the Maine Hospital Association in supporting the decision to end the vaccine requirement.

“The requirement achieved its intended goals and we fully support this change. Infections remain low and Maine has some of the highest vaccination rates for long-term care staff and residents. As the science evolves, we will continue to follow best practices for infection prevention and control and will promote ongoing efforts to educate our community about the many benefits of vaccines,” Angela Westhoff, president and CEO of the Maine Health Care Association, said in a statement.

The U.S. Centers for Disease Control and Prevention continues to recommend everyone ages 6 months and older – including health care workers – remain up to date on the vaccination. Health care providers remain free to implement COVID-19 vaccination requirements for their employees, DHHS said.

Maine has been rated among the top states on vaccination and was among the lowest for COVID-19 deaths. Maine currently ranks third overall on bivalent booster vaccination and first for people 65 and older, according to DHHS.