It is hard to believe that the world is still struggling to control the COVID-19 pandemic after nearly two years. The U.S. has vaccines now but also must contend with vaccine rules at both the state and federal levels. Further complicating matters for Utah businesses, there are conflicting COVID-19 rules at the federal and state level. The new Utah state vaccine mandate rules include exceptions that are not part of the Federal guidance.
The legal status of vaccine mandate rules constantly changes. Employers need a way to keep up-to-date with the latest Federal and Utah state rules and regulatory guidance from government agencies.
Keeping up-to-date with the latest legal and regulatory developments requires employers to cultivate staff expertise. Local businesses would do well to outsource compliance matters to a local Utah Professional Employer Organization (PEO).
This article presents a brief discussion concerning the vaccine mandate conflict so far.
The Federal Vaccine Mandate
Effective November 5, 2021, the Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) consistent with its legal duties. The ETS strongly urges employers with more than 100 employees to vaccinate their workers. Employers covered by the rule must “develop, implement, and enforce” a mandatory COVID-19 vaccine policy. Alternatively, OSHA’s ETS provides that employers may instead adopt a policy that employees either get vaccinated or participate in regular COVID-19 testing and wear masks instead of vaccination.
The ETS was issued because OSHA found that:
- COVID-19 continues to impact workplaces and unvaccinated employees remain at risk for severe health outcomes,
- The health of employees is in grave danger from exposure to COVID-19,
- Unvaccinated workers are at greater risk to transmit the disease to others than are vaccinated workers, and
- ETS is necessary to protect employees.
Legal challenges ensued for OSHA’s ETS and the perceived vaccine mandate. On November 12, 2021, the 5th U.S. Circuit Court of Appeals in New Orleans blocked the ETS on the basis that it was a vaccine mandate that exceeds OSHA’s authority. The Court said the ETS imposes a financial burden on employers, including paid time off, and possibly violates the Commerce Clause of the U.S. Constitution. There are petitions for review of the ETS in 12 of the U.S. Circuit Courts.
Litigation Timeline
In November 2021, the Judicial Panel on Multidistrict Litigation (JPML) conducted a review to determine which appellate court will receive the nod to review the consolidated circuit court cases.
On November 12, 2021, the 5th Circuit Court of Appeals issued a stay for the ETS.
On November 16, 2021, JMPL named the 6th Circuit U.S. Court of Appeals to hear the consolidated cases.
On November 30, 2021, the Kentucky U.S. District Court issued a preliminary injunction against the implementation of the COVID-19 vaccine mandate against employers in Kentucky, Ohio, and Tennessee.
On December 17, 2021, the 6th Circuit Court of Appeals dissolved the 5th Circuit stay. OSHA then moved forward with implementing the ETS rule but with discretion on enforcement citations and penalties before January 10, 2021.
Utah Passes S.B. 20
On November 16, 2021, Utah Governor Cox signed into law S.B. 2004, known as the Workplace COVID-19 Amendments bill. The law’s intent is to eliminate OSHA’s vaccine requirement on most employees in Utah.
S.B. 2004 allows workers to reject the vaccine based on religious beliefs or if the worker believes the vaccine is dangerous to health. In addition, S.B. 2004 provides an exception to mandatory vaccines based on the worker’s personal beliefs. This goes beyond the religious and medical exceptions provided by OSHA. This last exemption prohibits employers from taking any adverse action against employees who refuse to vaccinate for any reason. The law also permits employers to reassign employees who refuse vaccination to areas where they are less likely to have public contact.
Employers who are subject to Centers for Medicaid and Medicare regulations on COVID-19 vaccines or who are Federal contractors are exempt from compliance with S.B. 2004. Employers with fewer than 15 employees may require mandatory vaccinations without personal exceptions if the vaccine is related to the employee’s duties. The law also contains an exclusion for contracts for goods and services entered into before November 5, 2021, with a third party who is not an employee.
Federal Government Reacts
When Congress passed the OSH Act in 1970, it provided autonomy for 21 state-approved plans and one U.S. territory. States with an approved State Plan have some leeway to develop and enforce their own workplace health and safety standards. Such state plans must be at least as effective as OSHA’s standards.
In October 2021, OSHA threatened to revoke the approval of state plans for workplace health and safety standards in Arizona, South Carolina, and Utah.
An Uncertain Future
Many unknowns remain concerning future developments for Utah employers. If OSHA revokes Utah’s State Plan status and therefore its ability to have a Utah OSHA, employers will still need to comply with Utah S.B. 2004. Employers should continue to monitor both Federal and state law requirements with respect to COVID-19 vaccinations. They should also track employee vaccination records.
The best possible outcome for employers to keep abreast of the litigation and legal complications is to outsource COVID-19 compliance issues. In practical terms, outsourcing HR matters to a local PEO means eliminating the worry about breaching state or Federal COVID-19 rules.
