April 2022: Utah Amends Vaccination and Testing Requirements to Include Exemptions for Previous COVID-19 Infection

Update Applicable to:
All employers with vaccination mandates in the state of Utah.

What happened?
On March 22, 2022, Utah Governor Cox signed House Bill 63 (HB 63) into law, amending legislation passed in the Utah Legislature’s second special session of 2021 related to vaccine mandates in the workplace.

What are the details?
Effective on May 3, 2022, HB 63 expands the previous legislation by providing that employers who require an employee or prospective employee to receive or show proof that they received a COVID-19 vaccine shall be 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 well-being 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.

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 well-being, 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 the reassignment.

Federal Contractors
In HB 63, the federal contractors are now considered employers subject to the law’s requirements. That said, the bill maintains that those subject to the Centers for Medicare and Medicaid Services (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:

1. “establishes a nexus between the requirement and the employee’s assigned duties and responsibilities,” or
2. 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
3. reassignment of the employee is not practical.

Previously, the law was applied in full except for 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.

Testing Requirements
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.

For more information, please see the links below:

House Bill 63 (HB 63)

Article

What do employers need to do?
Employers should review the links provided above and make adjustments to their vaccination requirements and policies so that they are in compliance with the new law.

Vensure Employer Services, along with our source, Littler, suggests 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.