The Maine Supreme Judicial Court heard oral arguments last week concerning the imposition of vaccine mandates on emergency medical technicians (EMTs) by the Maine Emergency Medical Services (Maine EMS) Board.
Attorney Terry Mitrenga — representing the plaintiffs in this case — argued before the Court that the Maine Department of Health and Human Services (Maine DHHS) has the sole authority to impose vaccination requirements, as Maine EMS was not given the authority to do so by the Legislature.
Sarah Coleman — a state assistant attorney general — argued Tuesday that because Maine EMS is charged with the duty of ensuring the safety of the patients for whom they are responsible, imposing COVID-19 and influenza vaccine mandates on EMTs is well within their delegated powers.
This case — Chris Calnan v. Sam Hurley, et. al. — was originally heard by the Kennebec County Superior Court where it was dismissed. The plaintiffs then appealed this dismissal to the Maine Supreme Judicial Court.
Each attorney participated Tuesday in roughly fifteen minutes worth of back-and-forth with the Justices. Mitrenga, as the attorney for the plaintiffs, was also given several minutes for rebuttal at the close of the oral arguments.
“A fundamental requirement of agency rule making is express delegation,” Mitrenga said in her opening remarks. “In this case there was no express delegation.”
When asked about a statute authorizing Maine EMS to engage in rule making to further its “purposes, requirements, or goals” — including the provision of “optimum patient care” — Mitrenga argued that the imposition of vaccination requirements can clearly be understood as falling outside of that description.
“Is that not broad enough to permit this rule?” Justice Wayne Douglas asked Mitrenga, to which she responded that she believes it is not.
“The subject matter of this agency is to provide emergency medial services,” Mitrenga said. “There is a separate agency that has been designated the authority to control notifiable diseases,” referring to Maine DHHS.
“Is it your position that this board has no power to mandate any vaccines?” asked Chief Justice Valerie Stanfill.
“It is my position that any board within the state has no power to issue immunization vaccines until the Legislature expressly gives them that power,” Mitrenga said.
After fifteen minutes had elapsed, Coleman took to the podium to present her opening remarks on behalf of the defendants.
Coleman directly challenged Mitrenga’s position, arguing that “the Board acted well within its rule making authority when it promulgated” the mandate because it serves to “minimiz[e] the risk that patients contract deadly diseases while in EMS care.”
“As you look at the purposes set out in [the law],” Justice Andrew Mead said, “it lists quite a number of different things there…It all seems to deal with how the system works.”
“Do you agree that there’s a big difference between just running organization that has good drivers, and good vehicles, and good equipment, as opposed to injecting a foreign substance into a person’s body that is intended to be absorbed and change that person’s immune system?” Justice Mead asked.
“I would agree that the transportation piece is different than the actual provision of health care, but I would disagree that [the law] is limited to just transportation,” Coleman responded. “There are specific aspects of this provision that relate specifically to medical care, such as the treatment of patients under the appropriate medical guidance.”
“The last thing [vulnerable patients] need while in EMS care is to be exposed to a potentially deadly disease,” Coleman said.
“That’s all understood,” Mead responded. “I guess my question to you is, is immunization, injection of a foreign substance, in a whole different category than what [the law] is telling us to do?”
“Do you agree that it’s a different animal?” Mead asked, to which Coleman responded that she believes it is not.
The possibility that this has become a moot case was raised by Justice Catherine Connors during this portion of the oral arguments.
Beginning in January of this year, COVID-19 vaccinations were no longer required by Maine EMS, but EMTs providing direct care to patients are still obligated to be vaccinated against the flu.
Workers are, however, able to receive an exemption from the flu shot requirement if they sign onto a “masking agreement” with Maine EMS.
Given that Mitrenga articulated earlier in the proceedings that the plaintiffs are not challenging masking requirements in this case, Justice Connors asked Coleman if the issue at hand is now moot.
“This is the first I’m hearing [from them] that the masking requirement [is] not something they are challenging. If that’s the case, then yes, I would suggest it is moot,” Coleman said. “Our understanding is that they are still challenging the influenza requirement as it was stated in the amended rule and because of that we believe there is still a live controversy.”
It was also then further noted that because the plaintiffs are challenging the ability of Maine EMS to institute any vaccination requirements — to which there may or may not be a masking option available — that a live controversy persists in that respect as well.
On rebuttal, Mitrenga reiterated the plaintiff’s position that by imposing a vaccination requirement on EMTs, the Maine EMS overstepped its rule making authority.
“The challenge here is that rule making was engaged in without express delegation from the Legislature, and that is prohibted for any kind of rule making, whether for immunization or anything else,” Mitrenga said. “The plain meaning and the plain language of this statute does not contain anything to do with controlling contagious diseases, immunization rules, or vaccine mandates.”
Chief Justice Stanfill pushed Mitrenga for further clarification on this point, asking if she were arguing that “it exceeds their rule making authority” to impose a vaccine mandate, to which she responded affirmatively.
When asked by Justice Rick Lawrence how her position would impact the Board’s authority to require EMTs to wear gloves or stay home when sick, Mitrenga responded that a vaccine mandate present a different issue because it “involves bodily integrity.”
Stanfill stated that the Court will take the case under advisement and issue a written decision “in due course.”