On November 16, 2021, Governor Cox signed S.B. 2004, into law. The law, which went into effect immediately upon signing, includes several new state-specific restrictions on Utah employers who require COVID-19 vaccination and testing, some of which conflict with the emergency temporary standard (ETS) for employers with over 100 employees that was enacted by OSHA earlier this month.
Under the new law, Utah employers with 15 or more employees (excluding federal contractors and persons subject to Medicare or Medicaid regulations regarding COVID-19 vaccinations) may not require employees to be vaccinated for COVID-19 or show proof of vaccination for COVID-19 if receiving a COVID-19 vaccine would:
- be injurious to the health and well-being of the employee or prospective employee;
- conflict with a sincerely held religious belief, practice, or observance of the employee or prospective employee; or
- conflict with a sincerely held personal belief of the employee or prospective employee.
While the first two are similar to rights that employees may currently exercise under religious and disability discriminations rules at the federal and state level, the third is broad and undefined at this point. It appears that any employee or prospective employee could refuse to obtain a vaccine or show proof of vaccination by simply providing a statement that he or she has a sincerely held personal belief against it.
The new law also prohibits Utah employers of any size (again, excluding federal contractors and employers subject to Medicare or Medicaid regulations regarding COVID-19 vaccinations) from keeping or maintaining a record or copy of an employee’s proof of vaccination unless maintaining such records is required by law, an established business practice or industry standard requires otherwise, or a contract for goods or services entered into before November 5, 2021 required the employer to keep or maintain proof of vaccination status (excluding contracts between the employer and its employees).
Here is what Utah employers (excluding federal contractors and persons subject to Medicare or Medicaid regulations regarding COVID-19 vaccinations) need to know:
- Employers with existing mandatory COVID-19 vaccination policies who wish to continue encouraging vaccination through their policies should revise them to include the three exemptions under the new Utah law.
- Employers who have begun collecting vaccination records from employees should stop collecting those as of 11/16/2021. If any records were collected after that date, they should immediately be destroyed unless required by one of the reasons listed above. Employers can still ask employees if they are vaccinated and maintain a database of that information, without requiring proof of vaccination.
- Employers can still require employees to be tested for COVID-19 but must pay for all testing.
- Right now, because OSHA has paused enforcement of the ETS for large employers, this law doesn’t conflict with any current federal requirements. Even if the ETS ends up being enforced as it is currently written, employers would be able to comply with both laws by requiring that unvaccinated employees wear a face covering and submit to testing that is paid for by the employer. The vaccination record retention is the piece that would have come conflict.
- Employers with fewer than 15 employees can still require COVID-19 vaccination and proof of vaccination if the employer “establishes a nexus between the requirement and the employee’s assigned duties and responsibilities.” This has yet to be defined, but presumably could be if an employee’s duties require him or her to physically interact with others, including both members of the public and coworkers
The employment laws surrounding COVID-19 continue to evolve, but for now, it is in the best interest of employers in Utah to comply with the new Utah COVID-19 law until further guidance becomes available, knowing that things might change again in the future.