March 2023: Utah Enacts Law Restricting Use of Vaccination or Immunity Status in Employment Decisions

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

What happened?
On March 15, 2023, Governor Cox signed House Bill 131 (HB 131) into law, which prohibits employers, government entities, and places of public accommodation from using an individual’s immunity status as a restriction.

What are the details?
Effective May 3, 2023, prohibits employers subject to the law from discriminating against an individual based on vaccination status or whether the individual has an “immunity passport.” Prohibited acts include:

1. refusing employment to an individual;
   1. barring an individual from employment; or
   1. discriminating against an individual in compensation or in any term, condition, or privilege of employment. 

An immunity passport is “a document, digital record, or software application indicating that an individual is immune to a disease, whether through vaccination or infection and recovery.”

There are some exceptions to these prohibitions for private employers. Namely, the restrictions on discrimination do not apply to:

• Federal contractors;
• A regulated entity where compliance with the section would result in a violation of binding, mandatory regulations or requirements that affect the regulated entity’s funding issued by the Centers for Medicare and Medicaid Services or the United States Centers for Disease Control and Prevention;
• Employees who, as determined by the employer, have direct exposure to human blood or other potentially infectious materials that may expose the employee to hepatitis or tuberculosis;
• Vaccine requirements by certain childcare programs as defined under state law;
• An employer that:
  • Establishes a nexus between a vaccination requirement and the employee’s assigned duties and responsibilities; or
  • Identifies an external requirement for vaccination that is not imposed by the employer and is related to the employee’s duties and responsibilities; or
• A contract for goods or services entered into before May 3, 2023, if:
  • Application of this section would result in a substantial impairment of the contract; and
  • The contract is not between an employer and the employer’s employee.

The new discrimination provisions will be codified as part of the Utah Antidiscrimination Act’s statutory scheme, which should trigger an aggrieved employee’s ability to file a claim/charge with the Utah Antidiscrimination and Labor Division if a prohibited employment action is taken against them.

The new law also regulates places of public accommodation, stating that all persons within Utah are “free and equal and are entitled to full and equal accommodations, advantages, facilities, privileges, goods, and services in all business establishments and all places of public accommodation, and by all enterprises regulated by the state of every kind whatsoever, without discrimination based on immunity status.” Immunity status is defined in this section as “an indication of whether an individual is immune to a disease, whether through vaccination or infection and recovery.”

Under Utah Code § 13-7-2, a “place of public accommodation” includes:

1. Every place, establishment, or facility of whatever kind, nature, or class that caters or offers services, facilities, or goods to the general public for a fee or charge, except an establishment that is:
   
   
   1. Located within a building that contains not more than five rooms for rent or hire; and
   2. Occupied by the proprietor of the establishment as the proprietor’s residence; and
2. a place, establishment, or facility that caters to or offers services, facilities, or goods to the general public gratuitously if the place, establishment, or facility receives any substantial governmental subsidy or support.

Place of public accommodation in this portion of the Code does not include an institution, church, apartment house, club, or place of accommodation that is in nature distinctly private except to the extent that the institution, church, apartment house, club, or place of accommodation is open to the public.

The existing provisions of Utah Code § 13-7-4 apply to potential enforcement against a place of public accommodation that violates this new law. Additionally, the law allows any person denied rights guaranteed by it to apply to the Utah Attorney General’s Office, whereupon the state attorney general shall “investigate and seek to conciliate the matter.”

HB 131 does not prohibit a private or government entity from recommending an employee receive a vaccine.

For more information, please see the links below:

House Bill 131 (HB 131)

Article

What do employers need to do?
Employers should review the links provided above and their COVID-19 vaccination policies to comply with the law come May 3, 2023.