The Utah legislature recently passed H.B. 131, which prohibits employers, government entities, and places of public accommodation from using an individual’s immunity status as a restriction. Utah Governor Spencer J. Cox signed the bill on March 15, 2023. The law goes into effect on May 3, 2023.

Impact on Private Employers

This new law prohibits most private employers from requiring proof of immunity or vaccination when making employment decisions. Specifically, it 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; 2) barring an individual from employment; or 3) 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 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.

Impact on Government Employers

Under H.B. 131, government employers and entities may not deny employment opportunity based on an individual’s vaccination status, including whether the individual has an immunity passport, or require an employee to receive a vaccine. Most government employers are also subject to the exceptions identified above, plus others unique to government entities.

Public Accommodations

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 in all places of public accommodation, and by all enterprises regulated by the state of every kind whatsoever, without discrimination on the basis of 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. actually occupied by the proprietor of the establishment as the proprietor’s residence; and

2. a place, establishment, or facility that caters 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 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 are applicable 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.”

Recommendation for a Vaccine

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

Impact on Current Utah COVID-19 Laws

Under Utah Code § 34-56-201(1)(a) (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 employee or prospective employee 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”;
  • conflict with a sincerely held “personal belief” of the employee or prospective employee; or
• 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 also does not appear to expressly prohibit employers from requesting vaccination status or proof of immunity from employees, but employers are prohibited from discriminating against an employee or prospective employee 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 (unless an exception applies).

Vaccine Recordkeeping

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(c)(i) appears to still apply, which prohibits employers from keeping or maintaining records or copy of an employer’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.” Utah Code § 34-56-201(c)(ii).

Unanswered Questions

The new law, much like Utah Code § 34-56-201, 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 the exception applies to contracts entered into before May 3, 2023. Whether the Utah Antidiscrimination and Labor Division will issue future guidance or regulation on the employment aspects of the new law is also currently unknown.

Employers or 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.