Natural immunity to COVID-19 infection could allow Utah seniors and other workers to circumvent workplace vaccination mandates.
A bill signed into law this week by Utah Gov. Spencer J. Cox, HB 63, clarifies that having “natural immunity” to COVID-19 based on prior infection will satisfy the requirement of an employer’s vaccination mandate. Employees must submit a note from the health care provider confirming a previous infection to receive an exemption from an employer inoculation requirement.
Rep. Jefferson Burton (R-Salem), who sponsored the bill, previously called it a “clean-up bill” to legislation passed in 2021 barring employers from mandating vaccines in the workplace. Utah SB 2004, passed in November, requires most Utah employers to waive any COVID-19 vaccine requirement if an employee — or potential employee — submits a statement objecting to the vaccine for health or religious, or on the basis of personal beliefs.
SB 2004 did not apply to employers with fewer than 15 workers who showed a link between the vaccine requirement and an employee’s job duties. It also did not apply to workers subject to the Centers for Medicare & Medicaid Services interim rule affecting certain health care organizations.
Utah Health Care Association President and CEO Allison Spangler said the bill won’t have a major impact on the state’s assisted living communities because most don’t do not impose the vaccine.
As in SB 2004, HB 63 mandates that no “adverse action” can be taken against an employee who requests an exemption. The new law defines adverse action as refusal to hire or dismissal, demotion or reduction in salary. The Natural Immunity Act specifically states that worker reassignment is not an adverse action if the employee’s vaccination status is not the sole reason for reassignment.
The new law also states that an employer can still require vaccination or proof of vaccination if they link the requirement to the employee’s assigned duties and responsibilities, or if reassignment is not practical.
HB 63 states that employers cannot keep or maintain a record or copy of an employee’s proof of vaccination, but this does not prevent an employer from verbally asking an employee to voluntarily disclose their vaccination status. The previous law prohibited employers from keeping proof of employee vaccination records, but did not prohibit an employer from recording whether an employee had been vaccinated.
As with previous legislation, HB 63 requires employers to pay for all COVID-19 testing requirements for employees.
OSHA COVID-19 healthcare ETS
Utah joined 26 other state attorneys general in asking the Occupational Safety and Health Administration to withdraw its COVID-19 vaccination and testing mandate for large private employers after the majority of the Supreme Court blocked the rule. OSHA withdrew the rule soon after.
Separately, OSHA adopted its temporary COVID-19 Emergency Health Care Standard in June, but removed the “no-record-keeping” portions of it in late December because the agency was unable to complete a final rule within the time frame set out in the Occupational Safety and Health Act of 1970. On Tuesday, OSHA announced it would hold an informal virtual hearing on April 27 as it works to establish a final version of the rule, intended to protect assisted living facilities and other healthcare workers from exposure to COVID-19 at work. The agency is also accepting written comments on its efforts until April 22.
The healthcare ETS required that assisted living communities and other healthcare facilities conduct risk assessments and have written plans in place to mitigate the spread of the coronavirus. Workplace safety rules also required healthcare employers to provide some employees with N95 respirators and other personal protective equipment. Additionally, the standard included social distancing, employee screening, and cleaning and disinfection protocols. The final version will have changes.