Latest update in series:
What’s Next for Employers After the Supreme Court’s Vaccine Rulings?
(January 14, 2022)
Related webinar replays:
OSHA ETS Employee COVID-19 Vaccination and Testing Mandates New Requirements,
Tips and Traps for Large Employers (November 10, 2021)
COVID-19 Employee Vaccine and Testing Mandates New Requirements for Large
Employers, Federal Contractors and Healthcare Organizations (September 16,
Utah and Florida recently enacted legislation that impacts employers’ ability to require employees to get the COVID-19 vaccine. On Nov. 16, 2021, Utah Gov. Spencer Cox signed into law Utah S.B. 2004. Two days later, on Nov. 18, 2021, Florida Gov. Ron DeSantis signed into law joint House Bill 1B/Senate Bill 2B. These laws both prohibit private-sector employers from requiring COVID-19 vaccinations unless a range of individual exemptions are granted when requested by employees.
These new laws arrive as multiple states — including Texas, Tennessee and Alabama — have advanced laws and policies restricting employers’ ability to implement vaccination mandates. These laws continue to come amid efforts by the federal government to expand vaccination in the workplace.
New Utah Law
On Nov. 16, Utah Gov. Spencer Cox signed into law Utah S.B. 2004, which requires most Utah employers to waive any COVID-19 vaccine requirement if an employee or prospective employee submits a statement objecting to the vaccine for health reasons, religious reasons, or based on personal beliefs.
The law does not apply to employers with fewer than 15 employees that can show a nexus between the vaccine requirement and the employee’s job duties. It also does not apply to federal contractors and subcontractors, or to workers subject to the Centers for Medicare & Medicaid Services (CMS) interim rule impacting certain healthcare organizations.
All other employers must waive any COVID-19 vaccine requirement if an employee or prospective employee submits a statement indicating any of the following:
- The vaccine would be injurious to the employee’s health and well-being.
- The vaccine is in conflict with the employee’s sincerely held religious belief.
- The vaccine conflicts with the employee’s sincerely held personal belief.
Employers may not take adverse actions — including refusal to hire, termination, demotion or wage reduction — against employees or prospective employees who submit such statements. But the law specifies that employers may reassign such employees or terminate them if reassignment is not practical.
Further, the law prohibits employers from maintaining employees’ proof of vaccination, though they may maintain a record of who has been vaccinated. Finally, the law requires that employers pay for all COVID-19 testing required by the employer.
New Florida Law
On Nov. 18, Florida Gov. Ron DeSantis signed joint House Bill 1B/Senate Bill 2B, which prohibits private sector employers from requiring COVID-19 vaccinations unless a range of individual exemptions are granted when requested by employees.
The Florida law covers “any full-time, part-time, or contract employee” and does not address vaccine requirements for job applicants. The required exemptions to any COVID-19 vaccination mandate implemented by a private sector employer include the following:
- Medical reasons, including pregnancy or anticipated pregnancy. The exemption request must be signed by a physician, a physician assistant or an advanced practice registered nurse.
- Religious reasons based on a sincerely held belief.
- COVID-19 immunity based on prior infection documented by a lab test.
- Agreement to periodic testing, which must be provided at no cost to the employee.
- Agreement to reasonable use of employer-provided personal protective equipment.
The law directs the Florida Department of Health to develop appropriate exemption forms within 15 days. If an employee submits a completed exemption form, the employer must grant the request to opt out of the employer’s COVID-19 vaccination requirement.
Employers that fail to comply with the Florida law and terminate an employee based on a COVID-19 vaccine requirement are subject to fines up to $50,000 per violation (or up to $10,000 per violation if the employer has fewer than 100 employees). These fines can be avoided if the employee is reinstated with full back pay prior to the final decision by the attorney general to impose a fine.
Employees who are terminated for refusing to comply with a COVID-19 vaccine requirement where the employer did not properly apply the law’s exemptions cannot be denied unemployment benefits, if otherwise entitled to such benefits.
HB-1B also prohibits COVID-19 vaccination mandates for employees in government and public education and protects parental choice on masks and quarantine requirements in schools.
For questions about these laws, please contact the authors of this article, your McGuireWoods contact, or a member of the firm’s labor and employment, affirmative action, federal contracting or COVID-19 response teams.