Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On March 22, 2022, Utah Governor Spencer J. Cox signed HB 63 into law, amending legislation passed in the Utah Legislature’s second special session of 2021 related to vaccine mandates in the workplace. The law will become effective on May 3, 2022 (60 days from adjournment of 2022 legislative session).
Exemption from Vaccine Mandates for Employees with Previous COVID-19 Infection
HB 63 expands the previous legislation by providing that employers that require an employee or prospective employee to receive or show proof that they received a COVID-19 vaccine shall exempt from the requirement an employee or prospective employee who submits to the employer “a letter from the employee or prospective employee's primary care provider stating that the employee or prospective employee was previously infected by COVID-19.” This new exemption is in addition to the previously recognized requirement for employers to relieve an employee from a COVID-19 vaccination requirement/mandate: (1) if receiving the vaccine would be injurious to the health and wellbeing of the employee or prospective employee; (2) if receiving the vaccine would conflict with a sincerely held religious belief, practice, or observance of the employee or prospective employee; or (3) if receiving the vaccine would conflict with a “sincerely held personal belief” of the employee or prospective employee.
Although the Utah Legislature considered doing so during the 2022 legislative session, Utah has not gone so far as states that enacted provisions meant to outlaw employer vaccine mandates altogether. Accordingly, Utah employers can still mandate vaccination as a condition of employment so long as they abide by the statutory exemptions when raised by an employee. To claim such an exemption, the employee or prospective employee must “submit to the employer a statement” indicating that receiving the vaccine would fall into the health and wellbeing, religious, or sincerely held personal belief categories described above, or submit a letter from a primary care provider stating that the employee was previously infected with COVID-19.
As did the previous legislation, HB 63 mandates that no adverse action can be taken against an employee because of an act the employee makes in accordance with the law. The new law defines adverse action as the refusal to hire, termination, demotion, or reduction of an employee’s wages. The new law expressly states, however, that reassignment of an employee is not an adverse action if the employee’s vaccination status is not the only reason for reassignment.
The law passed in 2021 made clear that an “employer” subject to the requirements of the law did not include a person subject to the Centers for Medicare and Medicaid Services’ (CMS) COVID-19 vaccine rule impacting certain healthcare organizations. Additionally, “federal contractors” were expressly excluded from the definition of “employer” for purposes of the statute, but who qualified as a “federal contractor” was not defined in the law. In HB 63, however, the Utah Legislature makes clear that federal contractors are now considered employers subject to the law’s requirements. That said, the bill maintains that those subject to CMS’ COVID-19 vaccine regulation, or “health care providers” as defined under state law that are participating providers for the CMS, are not employers for purposes of the law.
Employers May Require Proof of Vaccination Despite Exemptions in Certain Scenarios
HB 63 states that an employer may require an employee or prospective employee to receive or show proof that they received a COVID-19 vaccination without permitting them to invoke the exemptions discussed above if the employer (a) “establishes a nexus between the requirement and the employee’s assigned duties and responsibilities,” or (b) the employer identifies an “external requirement for vaccination that is not imposed by the employer and is related to the employee’s duties and responsibilities,” and (c) reassignment of the employee is not practical. Previously, the law was applied in full except to employers with fewer than 15 employees that could establish a nexus between the vaccination requirement and the employee’s assigned duties and responsibilities.
HB 63 also provides that if a requirement imposed on an employer under the law substantially impairs the fulfillment of a contract entered into before May 4, 2022, to which the employer is a party, the requirement does not apply to the employer.
Vaccination and Recordkeeping
HB 63 requires recordkeeping practices similar to the previous version of the law, but with some differences. An employer may not keep or maintain a record or copy of an employee’s proof of vaccination unless otherwise required by law or “an established business practice or industry standard requires otherwise.” The recordkeeping requirements do not, however, “prohibit an employer from verbally asking an employee to voluntarily disclose whether the employee is vaccinated.” This language differs from the legislation passed last year, which bars an employer from maintaining a record or copy of proof of vaccination, but specifically states that it “does not prohibit an employer from recording whether an employee is vaccinated.”
Like the prior law, HB63 requires employers to pay for all COVID-19 testing requirements placed on employees. It also expressly provides that employers may not keep or maintain a record or copy of an employee’s COVID-19 test results, unless otherwise required by law.
The new law leaves a number of questions unanswered for employers. For instance, like the bill passed in 2021, HB 63 does not specifically address whether it is violated by the employer if a third-party vendor maintains possession of the vaccination record provided by the employee, not the employer itself. Given this uncertainty, employers that use third-party vendors for vaccination screening and to verify proof of vaccination should proceed with caution. It may be advisable to provide compliance in the contract with the vendor.
The law still provides no definition or further explanation regarding what constitutes a “sincerely held personal belief,” leaving employers to assume any personal belief is sufficient (if sincerely held) or risk running afoul of the law. There is also no definitive guidance on what might establish a nexus between the vaccination requirement and the employee’s assigned duties for employers that believe the vaccination requirements are necessary and reassignment of the employee is not practical. The same lack of clarity remains for what constitutes an established business practice or industry standard an employer can rely on as an exception to the ban on maintaining a record or copy of an employee’s proof of vaccination.
Employers with ongoing questions related to HB 63 should consult with legal counsel to ensure their current practices are in compliance with the new requirements.