The Construction Advantage
On August 12, 2021, the Mills Administration put into effect an amendment to a pre-existing Maine DHHS rule addressing immunization requirements for health care workers in the state of Maine. The Rule has been in place for nearly 20 years, and has required health care workers to be immunized against diseases such as measles, mumps, and hepatitis B.
In light of the COVID-19 pandemic, the Rule was amended to include the COVID-19 vaccine among the list of required immunizations. The Rule now requires employees of most types of health care facilities to obtain an immunization against COVID-19. If an employee does not obtain the vaccine, the health care facility must bar them from being physically present in the workplace.
The Rule allows for a medical exemption but does not allow any other exemption. The deadline to obtain the COVID-19 vaccine is October 31, 2021, after which non-immunized employees must be barred from the workplace unless they have a legitimate medical reason not to be vaccinated.
Although it seems unrelated to the construction industry, the Rule has already affected contractors in Maine. Because the Rule broadly defines “employees” to include any person who performs any service for a health care facility for wages, and explicitly includes independent contractors, a construction contractor that engages in any services for a health care facility likely falls under the Rule. This means that a contractor or subcontractor doing any construction, remodeling, repair, or other projects for a hospital, medical practice, dental practice, or other type of health care facility will be required to be immunized against COVID-19 in order to do work at the health care facility.
In addition, the Rule requires proof of the immunization. A health care facility must be able to show DHHS immunization records for all employees and independent contractors, and the records must include the month and year the immunization was administered. For any contractors working with hospitals or other health care facilities, a best practice will be for each contractor and subcontractor to provide a certificate of immunization directly to the health care facility. If the contractor or subcontractor qualifies for a medical exemption, they may instead provide a letter from a medical professional explaining the exemption.
The impact on the construction industry in Maine will hopefully not last forever. The Rule’s COVID-19 vaccination requirement will only last as long as DHHS has declared a public health emergency. Maine DHHS declared a public health emergency on July 21, 2021, and it is coterminous with the public health emergency declaration of the U.S. Department of Health and Human Services, which was recently renewed. When either Maine or the Federal DHHS ends the declaration of public health emergency, then the COVID-19 vaccine requirement will no longer be in place.
In contrast to Maine, New Hampshire recently amended NHRSA 141-C to prevent any person from being compelled to obtain a vaccine in order to access or receive any public benefit or service. There are some exceptions, such as public schools, which will still require certain vaccinations for enrollment. Relevant to the construction industry, New Hampshire’s mandate ban does not apply to nursing homes, hospitals, or medical facilities operated by the State of New Hampshire or New Hampshire counties or municipalities—while those facilities could mandate that employees become vaccinated, it is unclear whether they could bar unvaccinated independent contractors, including construction workers, from the worksite.
In Case You Missed It!
On October 7, the 6th annual Women in Construction event returned for another successful year. The event, hosted by the Construction Practice Group and Shareholder Asha Echeverria, featured presentations from Heather Thompson, Kavya Bhanupriya, and Be Schonewald, who discussed their experiences as women in the construction industry, and the challenges they have faced during their careers. Following the presentations, there was a panel discussion with the presenters moderated by Shareholder Mary Costigan. Approximately one hundred participants, including attorneys from both Maine and New Hampshire, attended the event both virtually and in-person.
Shareholders Mike Bosse and Kelly Gagliuso Recognized in 2022 Best Lawyers in America® “Lawyer of the Year” 2022 Edition for Construction Law
Bernstein Shur is proud to announce that 58 of its attorneys have been recognized in 2022 Best Lawyers in America. Of that list, 43 were listed in 2022 The Best Lawyers in America with another 15 listed in the Best Lawyers: Ones to Watch category. Eight Bernstein Shur attorneys, including Mike Bosse and Kelly Gagliuso earned the additional Best Lawyers: Lawyer of the Year designation, an honor exclusive to their legal specialty and geographic location.
Click HERE to see the full rankings.
Building Blocks: A construction law video series that breaks down the issues piece by piece.
We’ve introduced a series of construction law videos called Building Blocks, providing technical content in an approachable way. Whether it’s big picture concepts and how and when they apply, contract basics, or little-known areas of specialty, we’re breaking them down one block at a time.
Click HERE for a list of available videos.
Have a question or want to see a video on a certain topic? Let us know!
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