Utah Enacts Exemptions to Vaccine Mandates and Requires Employers to Pay for COVID Testing
Many remember when Hermey from the stop-motion animated children’s holiday show Rudolph the Red-Nosed Reindeer famously declared: “You can’t fire me, I quit.” Rather than be forced to be a toy-making elf, Hermey was opting to be a dentist. In this story, Hermey exercised his personal choice to become what he wanted.
Personal choice and freedom have been asserted to oppose many governmental and employer efforts to prevent the spread of COVID-19 in the workplace. Championing personal freedom, individuals have rebuffed and opposed vaccination and COVID-19 testing mandates purportedly. The Utah Legislature recently responded to employer vaccination requirements by creating exemptions based, at least in part, on an employee’s personal belief. This article discusses the requirements of the new law and how it impacts employer-created COVID-19 vaccination and testing mandates in Utah.
Utah’s Workplace COVID-19 Amendments
The battle over employer-imposed COVID-19 vaccination mandates has been the recent focus of the Utah Legislature. During a special session, the legislature enacted the Workplace COVID-19 Amendments (the “C-19 Amendments”). It was passed by both legislative houses on November 11, 2021. Governor Spencer Cos signed the bill into law on November 16, 2021.
The C-19 Amendments allow employers to require COID-19 vaccinations. However, the C-19 Amendments impose protections for workers that essentially render vaccine mandates ineffectual. The new law also imposes other requirements on employers.
The Vaccine Mandate Exemptions
The most striking feature of the C-19 Amendments is the creation of workplace vaccination requirement exemptions. Specifically, the new law affords employees and prospective employees three (3) grounds in which assert an exemption to an employer-imposed mandate. The third exemption, if construed as broadly as it potentially could be, may effectively nullify employer mandates.
The first carve-out is a medical exemption. The new law relieves employees and prospective employees from COVID-19 vaccination requirements when vaccination would be injurious to the worker’s health and well-being. Although Federal law already provides for a disability exemption under the Americans with Disabilities Act, this medical exemption may cover even more health and medical issues relating to the vaccine.
Second, the C-19 Amendments also provide for a religious exemption. It exempts individuals when the vaccine conflicts with a sincerely-held religious belief, practice, or observance of the employee or prospective employee. Religious exemptions have been common for vaccine mandates. They are already required under federal law in most instances.
Third, the law also eliminates a vaccination requirement when receiving the vaccine conflicts with a sincerely-held personal belief. The statute does not define or explain what constitutes a personal belief. It likely means any belief, including any moral or political position. Indeed, this one could be interpreted as an exemption for anyone who simply does not want to be vaccinated. Construed that broadly, this exemption may effectively render vaccine mandates powerless.
The burden on the employee or prospective employee to exercise one of the exemptions is not onerous. All that is required is to submit a statement to the employer exercising an exemption under the C-19 Amendments. The statement should declare that the employee or prospective employee should be relieved of the vaccine requirement under one of the three exemptions. The statute does not provide any further details regarding the statement, including any required contents. It is not even clear whether such statement would need to be in writing. Upon submission of the statement, the employee or prospective employee cannot be required to get vaccinated. Notably, a note from a medical provider is not required for the medical exemption.
Employers Must Pay for COVID-19 Testing
Employers are permitted to require COVID-19 testing. However, employers that require testing are to pay for the testing. The statute provides: “[A]n employer shall pay for all COVID‑19 testing an employee receives in relation to or as a condition of the employee’s presence at the workplace.”
In light of the recent rules issued by federal Occupational Safety and Health Administration (“OSHA”), some employers may have no choice but to pay for regular testing. As many employers may be aware, OSHA’s newly-promulgated rules require regular COVID-19 testing of unvaccinated employees who work for businesses with 100 or more employees.
Employers Cannot Retaliate
There is an anti-retaliation component to this legislations as well. Employers are not permitted to fire, demote, or reduce the wages of employees who seek exemption or otherwise exercise rights under the statute under this statute. Notably, however, an employer may reassign an employee who exercises an exemption.
In addition, unless required by law, employers are not permitted to keep or maintain employee vaccination records. There is an exemption on such record keeping for employers subject to an established business practice or industry standards requires employers to keep or maintain vaccination records.
C-19 Amendments Apply to Most Employers
This legislation broadly applies to most Utah employers. According to the new law, it covers any person or entity that employs one or more workers or operatives under a contract for hire. Public utilities also must comply with the law. It also applies to state and local governmental bodies and agencies, but it does not apply to the federal government.
Certain private employers are exempt from the law. The law does not apply to federal contractors. Further, any person or entity subject to a regulation by the Centers for Medicare and Medicaid Services regarding a COVID-19 vaccine (except for some political subdivisions of the state) are not considered employers under the C-19 Amendments. Such employers are not subject to the provisions of the statute.
The statute also does not apply to a contract for goods or services entered into prior to November 5, 2021. The only exemption are employment contracts, which are explicitly subject to the exceptions and other requirements of the legislation as described above.
In addition, the statute and the exemptions discussed above do not apply to some small employers. The exemptions will not apply if an employer (1) has fewer than 15 employees and (2) establishes a connection between the vaccination requirement and the employee’s assigned duties and responsibilities. In such cases, the small employer can require vaccines for its employees. However, such employers continue to be subject to the federal requirements that religious beliefs and disabilities be accommodated.
Collision with OSHA’s Emergency Temporary Standard
Most employers are aware that on September 9, 2021, President Biden declared that it would have the federal OSHA issue certain workplace rules aimed at limiting the spread of COVID-19. To put that mandate into effect, OSHA promulgated certain rules relating to COVID-19 on November 4, 2021. Those rules are known as “COVID-19 Vaccination and Testing; Emergency Temporary Standards,” or the “ETS.” These rules apply to employers that have a total of 100 or more employees. Some of the ETS requirements were to take effect on December 6, 2021; others were to take effect on January 4, 2022.
The ETS imposes requirements on employers relating to their workforces. Covered employers must ensure that their employees are either fully vaccinated or submit to weekly COVID-19 testing. The ETS requires unvaccinated employees to wear face coverings in the workplace. These new rules also require that covered employers afford employees four (4) hours of paid time off to get vaccinated. Further, such employers must permit time off for a negative reaction to the vaccine.
For now, the regulations will not take effect. On or about November 6, 2021, a federal court issued a stay that postpones the implementation of the ETS regulations. The courts are considering whether the rules should go into effect at all. If the courts allow them to take effect, employers need to be prepared to implement their requirements soon. At that point, employers will need to balance the requirements of the ETS regulations with the C-19 Amendments.
There is some overlap, interaction, and conflict between the ETS regulations and the C-19 Amendments. The first conflict between the ETS and the C-19 Amendments should be obvious: How the exemptions of the C-19 Amendments may be contrary to the ETS vaccination mandate requirement. It is unclear how the laws will be reconciled. The assumption is that federal preemption may resolve the issue, but that is still be seen.
As mentioned above, the C-19 Amendments require employers to pay for testing imposed as a condition of employment. And that appears to be the aim of the ETS regulations. In other words, it appears that employers covered by the ETS will be required to pay for any testing necessitated for unvaccinated employees.
Until the ETS takes effect, Utah employers should focus and comply with the requirements of the C-19 Amendments and other laws that require religious and disability accommodations. However, if and when the ETS becomes effective, employers will need to navigate the minefield of the potentially conflicting laws. Consultation with legal counsel would be advisable to avoid potential legal troubles or liability.
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