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Utah Employers Must Comply With the New State Prohibition on COVID-19 Vaccine Mandates Pending the Outcome of the Federal OSHA Mandate.

By Jessica A. Ramirez and Scott A. Hagen

State Mandate

Earlier this month OSHA issued the COVID-19 Vaccination and Testing Emergency Temporary Standard (“ETS”), which requires employers with 100 or more employees to implement a workplace rule mandating that their employees either get vaccinated or undergo weekly COVID testing and wear a mask while at work. However, on November 16, 2021, Governor Cox signed into law the Workplace COVID-19 Amendments bill (“Utah COVID Law”), which is meant to relieve most Utah employees of any vaccination requirement imposed by their employer. The law went into effect the same day. Although the ETS, as a federal law, is likely to preempt the COVID Amendment, the ETS has been stayed, and is currently not in effect. Accordingly, until and unless the ETS is ruled enforceable, Utah employers must comply with the Utah COVID Law.

The Utah COVID Law does not bar vaccination mandates, but requires employers to excuse compliance with such a vaccination requirement if the employee submits a statement that the vaccine (1) is “injurious to the health and well-being of the employee;” (2) “conflict[s] with a sincerely held religious belief, practice or observance of the employee”; or (3) “conflict[s] with a sincerely held personal belief of the employee . . . .” The first and second exemptions—the medical and religious exemptions— are expected to be consistent with federal reasonable accommodation law for religious and medical purposes. However, the third exception, for a “sincerely held personal belief,” would allow employees to opt out of the vaccination requirements for personal reasons.

Although there is no definition for a “sincerely held personal belief” in the Utah COVID Law, this exemption is likely to be broad enough to include concerns over the vaccine’s safety and simple “vaccine hesitation,” among other things. In essence, this “sincerely held personal belief” exemption is designed to prohibit employers from taking any “adverse action” against employees who refuse to be vaccinated for any reason.

If an employee refuses to be vaccinated based on one of the above exemptions, employers are then prohibited from terminating, refusing to hire, demoting, or reducing the wages of an employee because of such refusal. Employers are, however, permitted to reassign the employee to a different job without violating the statute. Bill sponsor Sen. Kirk A. Cullimore explained that reassignment could include removing employees from the work premises while continuing to compensate them.

Moreover, the Utah COVID Law permits an employer, to terminate the employee if reassignment is “not practical.” Unlike the federal reasonable accommodation standard which would allow an employer to terminate an employee if accommodating the employee’s religious belief or medical condition would result in an “undue hardship” to the employer, the Utah COVID Law permits termination of an employee only if reassignment is “not practical.” Although the law does not specify what constitutes “not practical,” Sen. Cullimore used the term “impossible” to describe the standard for impractical, and explained that this exception arose from the business and health care community’s concern that vaccination is necessary for certain positions. The law is also unclear as to how much discretion employers will have in determining what constitutes “not practical” or “reassignment.” However, it is likely that if the employee is in a position that requires direct interaction with customers or co-workers, and no non-interacting position for which the employee is qualified is available, reassignment would not be practical and the employee could be terminated.

It is important to note that nothing in the Utah COVID Law prohibits employers from requiring non-vaccinated employees to wear masks, socially distance themselves from others, or submit to testing in lieu of vaccination. Employers are, however, required to pay for such testing. Consequently, under this law, employers have the option to require masks, testing, or reassignment of employees who refuse to be vaccinated.

All Utah employers must comply unless they are (1) “subject to regulation by the Centers for Medicare and Medicaid Services regarding a COVID-19 vaccine;” or (2) federal contractors. This law also excludes any “contracts for goods or services” entered into by the employer with a third party that is not an employee before November 5, 2021. In addition, employers with fewer than 15 employees may mandate vaccinations for employees without having to accommodate any religious, medical, or personal exemption if they can show a connection between the vaccination requirement and the individual employee’s “assigned duties and responsibilities.”

Utah employers are encouraged to review their vaccination policies to ensure compliance with the Utah COVID Law until further notice on the status of the OSHA ETS. Furthermore, even if federal courts hold the ETS enforceable, and it goes into effect, the Utah COVID Law may not be fully preempted, as the OSHA ETS only covers employers with 100 or more employees.

Jessica A. Ramirez is an associate in the Firm’s Employment and Labor Law section.  She is a litigator with an emphasis on employment, commercial and immigration law. Ms. Ramirez is an active member of her firm’s Minority Law Group and Women Lawyers Group. She currently serves as the Director of Events for ALPFA’s Salt Lake City chapter and sits on the Board of Directors for the English Skills Learning Center.

scott hagen

Scott A. Hagen is the Chair of the Firm’s Employment and Labor Section. He is an experienced defense lawyer handling employment contracts, employment discrimination, wrongful termination, OSHA, class action litigation, labor relations (union organizing drives, certification elections, collective bargaining agreements, unfair labor practices, and arbitrations), ERISA litigation, and enforcing employment-related covenants-not-to-compete through securing injunctive relief.

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