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.<\/li>\n<\/ul>\nH.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.<\/p>\n
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.”<\/p>\n
Unanswered Questions<\/p>\n
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.<\/p>\n
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.<\/p>\n
Ethan D. Thomas is an attorney with Littler in Las Vegas. Brian D. Tuttle is an attorney with Littler in Salt Lake City. <\/em>\u00a9 2023. <\/em>All rights reserved. Reprinted with permission. <\/em><\/p>\n
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