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Employment Law Update- 2/25/2022

By February 25, 2022No Comments

CONTENTS:

  • CONFLICTING VACCINE BILLS ARE PENDING IN UTAH LEGISLATURE
  • UTAH LEGISLATIVE SESSION ENDS NEXT WEEK
  • BILL TO END MANDATORY ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT CLAIMS PASSES CONGRESS
  • EMPLOYER TO PAY $5 MILLION TO SETTLE EEOC DISCRIMINATION LAWSUIT
  • THE 2022-23 H-1B VISA LOTTERY STARTS ON “FAT TUESDAY”, MARCH 1ST                 

 

CONFLICTING VACCINE BILLS ARE PENDING IN UTAH LEGISLATURE. The Utah Legislature is currently in session and considering two vaccine-related bills that appear to conflict with one another. Both bills have passed the House and are pending in the Senate. Brief summaries of the bills are below:

2nd Sub. HB 60- Vaccine Passport Amendments: with certain exceptions, prohibits immunity passports and makes it unlawful discrimination for an employer (with one or more employees) to require proof of immunity status (through vaccine or infection). It also applies to services offered by governmental entities and places of public accommodation (e.g. restaurants, hotels, etc.). This bill makes vaccination/immunity status a protected employee class under the Utah Antidiscrimination Act. Indeed, the bill places vaccination status as a super-protected class because it applies to all employers with one or more employees. Compare that against the Utah Antidiscrimination Act which prohibits employment discrimination on any other basis (e.g., race, gender, religion, disability, etc.), but only with respect to employers who have 15 or more employees. For example, a woman who is openly discriminated against on the basis of gender by an employer with fewer than 15 employees has no statutory discrimination claim. However, an employee who believes they have been discriminated against on the basis of their vaccination status will have a statutory discrimination claim regardless of the size of their employer. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/HB0060.html

3rd Sub. HB 63- Covid-19 Vaccine Exemptions: amends the Covid-19 Vaccine Requirement law, which passed during a special session last year. That law requires employers to exempt employees and applicants from a vaccination requirement if the employees represent that a vaccine would be “injurious to [their] health,” “conflict with a sincerely held religious belief,” or “conflict with a sincerely held personal belief . . . .” The amendment adds to these exemptions by requiring an employer to relieve an employee or applicant of a COVID-19 vaccination mandate if the employee or applicant submits a physician’s note stating that the employee or applicant prospective was previously infected by COVID-19. The bill further amends existing law by stating that an employer may require an employee or applicant to receive or show proof that the employee or prospective employee has received a COVID-19 vaccination without providing an exemption IF: (1) the employer establishes a nexus between the requirement and the employee’s assigned duties and responsibilities and (2) reassignment of the employee is not practical. The bill also says an employer may not keep or maintain a record or copy of an employee’s proof of vaccination, unless: (a) otherwise required by law; or (b) an established business practice or industry standard requires otherwise. This does not prohibit an employer from verbally asking an employee to voluntarily disclose whether the employee is vaccinated. The bill requires an employer to pay for all COVID-19 testing an employee receives in relation to or as a condition of the employee’s presence at the workplace. The bill says an employer may not keep or maintain a record or copy of an employee’s COVID-19 test results unless otherwise required by law. Finally, the bill expressly does not apply to healthcare employers subject to the CMS vaccination mandate. This bill has passed the House and a Senate committee and is pending on the Senate floor. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/HB0063.html

In short, HB 60 would make vaccination/immunity status a protected class and prohibit all employers from mandating vaccines, while HB 63 would allow a vaccine mandate if the employer can show the requirement is job-related and reassignment of the employee is not practical. Employers and HR professionals may wish to weigh in on these bills while they are still under consideration. A link to find your Utah state senator is here: https://le.utah.gov/GIS/findDistrict.jsp

UTAH LEGISLATIVE SESSION ENDS NEXT WEEK: The annual regular 45-day session of the Utah Legislature that started on January 18, 2022, will end on March 4, 2022. The Legislature already has considered a number of employment-related bills. Here is a list of the non-vaccine-related bills we are tracking:

SB129– State Prevailing Wage Requirements: requires workers on a state construction project to be paid a prevailing wage. This bill is pending in a Senate committee and likely will not pass this year. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/SB0129.html

HB 192– Former Offender Employment Amendments: when hiring a licensed mental health professional, prohibits a public or private employer from considering or requiring disclosure of certain juvenile court adjudications and criminal convictions, including expunged matters. This bill passed the House and is pending before a Senate committee. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/HB0192.html

SB 117 – Utah Antidiscrimination Act Amendments: amends the Utah Antidiscrimination Act to provide protection for a trait historically associated with race, including a protective hairstyle. This bill is pending in a Senate committee and likely will not pass this year. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/SB0117.html

HB202– Employment Selection Procedures Act Amendments: amends the Employment Selection Procedures Act to prohibit an employer from inquiring into an applicant’s compensation history. This bill is pending in the House Rules committee and likely will not pass this year. For the text of the, see: https://le.utah.gov/~2022/bills/static/HB0202.html

3rd Sub SB95– Limitations on Employer Liability: addresses liability of an employer in certain industries (automotive repair and maintenance; construction; culinary arts; manufacturing; oil, gas, or mining; retail sale of goods or services; or transportation of freight, merchandise, or other property by a commercial vehicle) for negligently hiring, or failing to adequately supervise, an employee who has been previously convicted of an offense. This bill has passed the Senate and is pending in the House. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/SB0095.html

1st Sub. HB 32– Health Care Worker Protection Amendments: enacts enhanced penalties for assault or threat of violence against an owner, employee, or contractor of a health facility. This has passed both the House and Senate and now is before the Governor. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/HB0032.html

2nd Sub. SB 63– Bereavement Leave Amendments: requires certain public employers to implement rules that will provide bereavement leave for employees who suffer the loss of a child as a result of a miscarriage or stillbirth. This has passed both the House and Senate and now is before the Governor. For the text of the bill, see: https://le.utah.gov/~2022/bills/static/SB0063.html

BILL TO END MANDATORY ARBITRATION OF SEXUAL ASSAULT AND SEXUAL HARASSMENT CLAIMS PASSES CONGRESS. On February 10, 2022, the United States Senate passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act. The legislation had previously been approved by the House of Representatives, and now awaits President Biden’s signature. Once signed, the new law will amend the Federal Arbitration Act to make pre-dispute mandatory arbitration agreements unenforceable with respect to claims of sexual assault or sexual harassment. Rather than being required to arbitrate such claims, the employee-plaintiff will have the option to bring the case in court or before an arbitrator. The bill had broad support in both political parties. Importantly, the law does not apply to arbitration agreements for other types of employment-related claims. Employers who use mandatory arbitration agreements should consult with experienced employment law counsel about how this new law may impact them.

EMPLOYER TO PAY $5 MILLION TO SETTLE EEOC DISCRIMINATION LAWSUIT. Earlier this month, the EEOC announced that an employer has agreed to pay $5 million to settle a discrimination lawsuit brought by the agency. EEOC alleged that the employer, a furniture and mattress company, had engaged in a “nationwide pattern or practice of sex discrimination against qualified female applicants” for sales and warehouse positions. Some stores, according to the EEOC, had not hired any women in sales or warehouse roles in a number of years. Moreover, managers allegedly threw away job applications submitted by women, and said that “women would not ‘do as great a job at selling furniture as men’” and could not do warehouse work because “women can’t lift.” Managers were also reported to have called female employees “a distraction” for male workers.

In addition to paying the monetary settlement, the company has also agreed to hire a Title VII coordinator, develop a recruitment plan, and train all employees about discrimination and retaliation. It must also periodically report to the EEOC regarding the number of female applicants for sales and warehouse jobs, and the number hired. Finally, it agreed to offer jobs to qualified female applicants it previously passed over. EEOC Chair Charlotte A. Burrows praised the outcome, saying: “Eliminating barriers in recruitment and hiring is absolutely critical to our work to advance equal employment opportunity and to help provide access to good jobs for workers . . . All workers have a right to earn a living free of discrimination, and sex discrimination has no place in hiring decisions.”

A link to the press release is here: EEOC Settlement Press Release

THE 2022-23 H-1B VISA LOTTERY STARTS ON “FAT TUESDAY”, MARCH 1ST (by Jones Waldo Immigration Attorney Lewis Francis). The USCIS’s annual electronic H-1B visa lottery registration period starts on Mardi Gras Tuesday, March 1, 2022, and concludes at noon (EST) on Friday, March 18, 2022. This is the only time, from April 2022-2023, that employers can seek H-1Bs for Bachelors or U.S. Masters degree workers who do not already have an H-1B, such as F-1 students already in the U.S. working on temporary post-graduate Optional Practical Training (“OPT”). The limited H-1Bs are regularly oversubscribed, with only a 50% chance of selection each year. If selected for processing through the lottery, the employer will have 90 days to prepare and file the H-1B application for October 1, 2022, or a later start date. To register, the employer must create an online myUSCIS “Registrant” account. Detailed instructions are found HERE. Once the account has been set up, the employer or its attorney can file the H-1B registrations, for which the filing fee is $10 for each employee. After the registration period ends, the USCIS will randomly select registrations and then send notifications to the user’s myUSCIS account. USCIS plans to send out registration notifications by March 31, 2022.

Mike O’Brien | mobrien@joneswaldo.com
Mark Tolman | mtolman@joneswaldo.com
Marci Rechtenbach | mrechtenbach@joneswaldo.com
Paul Smith | psmith@joneswaldo.com
Michael Judd | mjudd@joneswald.com
Elena Vetter | evetter@joneswaldo.com

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