On November 16, 2021, Governor Spencer Cox signed into legislation SB2004 “Workplace COVID-19 Amendments,” a invoice handed throughout a particular session of the Utah Legislature. Whereas the invoice was launched in response to vaccine mandates contained within the Govt Orders of President Biden and the particular rule or ETS from the Occupational Well being and Security Administration (“OSHA”) (which has now been stayed by the federal courts), this new legislation nonetheless carries important authorized necessities for Utah employers. The invoice turned instantly efficient yesterday upon the Governor’s signature with out giving employers any lead time to arrange or change insurance policies/processes. This legislation doesn’t apply to any “individual” that’s regulated by the Facilities for Medicare or Medicaid Companies associated to COVID-19 (except a state entity) or that could be a federal contractor.
At a excessive degree, the invoice:
(1) requires that any employer vaccination mandate embrace exemptions for a) well being causes; b) sincerely held non secular beliefs; and c) “sincerely held private beliefs”;
(2) prohibits employers from taking any adversarial motion in opposition to an worker or potential worker who just isn’t vaccinated or asks for an exemption;
(3) requires employers to pay for any COVID testing necessities; and
(4) prohibits employers from retaining a duplicate of any vaccination paperwork however permits employers to maintain a file of whether or not an worker is vaccinated.
Whereas employers are seemingly accustomed to exemptions associated to disabilities and sincerely held non secular beliefs and have seemingly reviewed the necessities for these exemptions below the People with Disabilities Act and Title VII, Utah’s newly crafted exemption associated to an worker or potential worker’s “battle with a sincerely held private perception” is new territory. This isn’t a authorized time period of artwork or an idea contained in employment legal guidelines or steering paperwork from any authorities company. There look like no parameters, authorized authority, or pointers for employers to seek the advice of and comply with or to assist decide what a “sincerely held private perception” is. The legislation implements a really broad exemption and sure undermines any employer vaccine mandate.
The brand new legislation defines adversarial motion as a refusal to rent or the termination, demotion, or discount of hours for an worker, which means that Utah employers have restricted skill to require that workers or potential workers be vaccinated. Adversarial motion doesn’t embrace, nonetheless, an employer’s reassignment of an worker or the termination of an worker if reassignment just isn’t sensible. This exception seems to offer employers substantial leeway in making hiring choices associated to vaccination standing in sure positions the place it might be required, or the job duties would require a vaccination, after which reassignment just isn’t sensible.
Fortunately, the legislation doesn’t have an effect on an employer’s skill to impose well being and security requirements from federal steering based mostly on vaccination standing. That’s, the legislation doesn’t prohibit employers from having completely different necessities within the office associated to vaccinated and unvaccinated workers (akin to social distancing, face masks, testing, reporting, and many others.). Employers look like free to take care of completely different security necessities of their workplaces based mostly on vaccination standing.
Nevertheless, employers should now bear the price of any testing necessities. Many employers have been reopening workplaces for the absolutely vaccinated and for the unvaccinated, requiring particular COVID testing and adverse checks earlier than unvaccinated workers can enter the office. This nonetheless seems to be acceptable below the legislation as long as the employer bears the monetary burden of any testing requirement. With respect to check outcomes, the legislation seems to be silent as as to if or not an employer could obtain and retain such information, and subsequently, it seems seemingly that employers can proceed any such follow.
One of the important points for Utah employers below this legislation pertains to proof of vaccination. Below this new legislation, Utah employers usually are not allowed to take care of a file or copy of an worker’s proof of vaccination. Many employers have carried out a course of for workers to add or present a duplicate of their vaccination playing cards to allow the worker to return to work or not be topic to sure security protocols. Such a method now seems in potential battle with the brand new legislation. There may be an exception associated to “a longtime enterprise follow or [where an] trade normal requires in any other case.” If an employer has established a enterprise follow of sustaining a vaccination card earlier than this legislation went into impact yesterday, then it might definitely argue its previous follow doesn’t violate this new legislation. As well as, if an employer used a third-party vendor (akin to BambooHR, ADP, or the like) to retain a duplicate of vaccination playing cards, it might argue that the third-party vendor just isn’t the employer and subsequently not topic to this provision. The legislation doesn’t prohibit an employer from recording whether or not an worker is vaccinated. So, an employer might implement a course of by which proof of vaccination is proven, recorded by the employer, however no copy of the proof of vaccination is retained.
It is usually notable that there are not any penalty provisions listed within the statute. The statute can be silent as as to if there’s a personal reason behind motion for any violations of the legislation.
This new legislation definitely places employers in the midst of a tug of struggle between mandates from each federal and state governments. Sadly, whereas the federal vaccine mandate points are litigated, uncertainty is more likely to proceed and can create ongoing compliance difficulties. Employers are suggested to maintain updated as these points proceed to evolve.
Quick steps for Utah employers:
- In case you have a present vaccination mandate or coverage in place, revise your coverage for Utah-based workers to permit for potential exemptions for well being causes, sincerely held beliefs, or sincerely held private beliefs;
- If you happen to presently have retained copies of worker vaccination playing cards, instantly change your follow shifting ahead to not retain such playing cards, and as an alternative merely preserve a file of worker vaccination standing;
- If you happen to presently have retained copies of worker vaccination playing cards, think about whether or not you wish to method this conservatively by creating an inventory of workers who’re vaccinated after which delete/destroy copies of vaccination playing cards on file and never preserve any vaccination playing cards (based mostly on the ETS pointers, even when the brand new rule goes into impact, there’s a “grandfathering” clause that ought to be relevant making such record acceptable “proof of vaccination” below the ETS if made previous to the ETS efficient date);
- Make sure that any COVID testing necessities are absolutely paid by the employer, not the worker; and
- Earlier than taking any adversarial motion associated to an worker or potential worker, their vaccination standing, or their request for an exemption, rigorously think about all options, reassignments, and associated points.