Utah Prohibits Use of Vaccination Status in Employment Decisions

​The Utah legislature recently passed H.B. 131, which prohibits employers, government entities and places of public accommodation from using an individual's vaccination or immunity status as a restriction. Utah Gov. Spencer Cox signed the bill on March 15. The law will take effect on May 3.

This law prohibits most private employers from requiring proof of immunity or vaccination when making employment decisions. Specifically, it prohibits employers from discriminating against an individual based on vaccination status or whether the individual has an immunity passport. Prohibited acts include barring an individual from employment and discriminating against an individual in compensation or in any term, condition or privilege of employment. Immunity passport is defined as "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 for private employers. The law does 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 entity's funding issued by the Centers for Medicare and Medicaid Services or the United States Centers for Disease Control and Prevention.
• Employees who 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.
• 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.
• A contract for goods or services entered into before May 3, 2023 (with some exceptions).
  

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 with the Utah Antidiscrimination and Labor Division if a prohibited employment action is taken against them.

Under H.B. 131, government employers may not require an employee to receive a vaccine or deny employment opportunities based on an individual's vaccination status. Most government employers are subject to the exceptions identified above, plus others unique to government entities. H.B. 131 does not prohibit a private employer or government entity from recommending that an employee receive a vaccine.

Requesting Proof of Vaccination

Under Utah Code 34-56-201, a COVID-19 law originally passed in 2021 and amended in 2022, employers are permitted to request proof of a COVID-19 vaccine from employees or prospective employees, but must exempt the employee or prospective employee from the requirement if:

• The person provides a statement that receiving the COVID-19 vaccine would be injurious to their health and wellbeing; conflict with a sincerely held religious belief, practice, or observance; or conflict with a sincerely held personal belief.
• A letter from the employee or prospective employee's primary care provider states that the employee or prospective employee was previously infected by COVID-19.

H.B. 131 does not repeal Utah Code 34-56-201. It does not appear to expressly prohibit employers from requesting vaccination status or proof of immunity from employees, but employers are prohibited from discriminating against employees or prospective employees by using their vaccination status or whether they have an immunity passport as the basis for termination, or in making decisions related to hiring or other terms and conditions of employment.

H.B. 131 is silent as to the requirements and/or prohibitions on recordkeeping involving an employee's or prospective employee's vaccine records. Accordingly, Utah Code 34-56-201 appears to still apply, which prohibits employers from keeping records or copies of an employee's proof of vaccination, unless a legal requirement, established business practice, or industry standard requires otherwise. The existing statute makes clear that the recordkeeping provision "does not prohibit an employer from verbally asking an employee to voluntarily disclose whether the employee is vaccinated."

Unanswered Questions

The new law provides no definitive guidance on what might establish a nexus between a vaccination requirement and an employee's assigned duties for employers that believe vaccination requirements are necessary. Furthermore, H.B. 131 does not provide definitive guidance on the meaning of "substantial impairment" of a contract for purposes of determining if an exception applies to contracts entered into before May 3, 2023. Whether the Utah Antidiscrimination and Labor Division will issue future guidance or regulations on the employment aspects of the new law is currently unknown.

Employers and places of public accommodation that currently require proof of vaccination and/or immunity for any purpose should review their policies and procedures in this area with legal counsel and be prepared to make any necessary changes needed.

Ethan D. Thomas is an attorney with Littler in Las Vegas. Brian D. Tuttle is an attorney with Littler in Salt Lake City. © 2023. All rights reserved. Reprinted with permission.