December 1, 2021
The past few weeks have seen a flurry of regulatory activity by the federal and state governments regarding COVID-19 vaccine mandates. Even though court actions continue, now is a good time for employers to assess their current requirements and update policies and practices.
On November 4, 2021, OSHA issued an Emergency Temporary Standard (“ETS”) on Vaccination and Testing, which would have required most employers with 100 or more employees to require vaccination or weekly testing. However, enforcement activities were quickly suspended by the U.S. Court of Appeals for the Fifth Circuit, which ordered that OSHA “take no steps to implement or enforce” the ETS “until further court order.” So, for now, employers who were subject to the ETS are not required to implement vaccine-related policies for their employees.
Federal Contractor Requirements
On September 9, 2021, the Biden Administration issued an Executive Order announcing that federal contractors would be required to comply with COVID-19 safety protocols, including vaccine mandates. Federal contractors can expect to see these requirements in their contracts and renewal documents over the coming months. One exception arises out of a federal court’s ruling from on November 30, 2021, which temporarily halted enforcement of these requirements to federal contractors in Kentucky, Ohio, and Tennessee.
The Centers for Medicare & Medicaid Services also issued an emergency rule requiring most health care workers to receive their first vaccine by December 6, 2021, and to be fully vaccinated by January 4, 2022. On November 30, 2021, a federal court issued a nationwide injunction that has temporarily blocked this mandate in all states.
Utah S.B. 2004
On November 16, 2021, Governor Cox signed into law Utah S.B. 2004, which went into effect the next day. This law directly impacts both large and small employers in Utah. Most Utah employers are now required to waive any COVID-19 vaccine requirement if an employee or prospective employee submits a statement that receiving the vaccine would be injurious to their health, would conflict with a sincerely held religious belief, or would conflict with a sincerely held personal belief.
Employers are generally familiar with disability- and religious-related exemptions under the Americans with Disabilities Act and Title VII, but will not be familiar with “a sincerely held personal belief.” The law does not define what a “sincerely held personal belief” is, leaving employers to interpret what this broad phrase means.
Utah S.B. 2004 prohibits employers from taking “adverse action” against an employee who submits a statement based on one of the three exceptions mentioned above. “Adverse action” means an action that results in a refusal to hire a potential employee or the termination of employment, demotion, or reduction of wages of an employee. Interestingly, “adverse action” does not include the reassignment of an employee or the termination of an employee if reassignment is not practical.
Other notable aspects of S.B. 2004 include the following:
- Employers are not permitted to keep or maintain a copy of the proof of vaccination unless they are required to by law, an established business practice requires the company to keep record thereof, or the provisions of the law do not apply to the employer.
- Employers are permitted to record whether an employee is vaccinated.
- Employers must pay for all COVID-19 testing an employee receives in relation to or as a condition of the employee’s presence in the workplace.
- Employers with fewer than 15 employees who establish a nexus between the vaccine requirement and the employee’s assigned duties and responsibilities may require an employee or prospective employee to receive or show proof that they have been received a COVID-19 vaccination.
- S.B. 2004 does not prohibit employers’ from requiring employees to undergo regular COVID-19 testing; however, it does require employers to pay the costs of any required testing.
Next Steps for Employers
Utah employers are likely to be a little bit confused with the constant changes of COVID laws on both the state and federal level. Nonetheless, here are some steps Utah employers should take:
- Update any vaccine mandate-related policy to explicitly permit exceptions for disability-related reasons, religious beliefs, and sincerely held personal beliefs;
- Do not retain copies of proof of vaccination unless required by law or pursuant to an established business practice or industry standard; rather, simply keep record of employee vaccination status;
- If the employer decides to take an adverse action in relation to this law, ensure that the company is not in violation of any other law, such as Title VII. For instance, the company should ensure that the company is not taking an adverse action based on race, gender, sexual orientation, age, or in retaliation for participating in a protected activity when it reassigns an employee under circumstances permitted under this law;
- The company, not the employee, must pay for any required COVID-19 testing; and
- Because a “sincerely held personal belief” is not defined under Utah law, the company must ensure that it consistently applies how it defines this term and how it is applied to its employees requesting an exemption.
For more information and/or updates on the status of COVID-19 vaccine and testing laws or other employment matters, please contact Brian Tuttle and the employment counsel team at Clyde Snow.