Utah will likely rely on courts to block Biden COVID vaccine mandate

Business owners warn packed hearing room that requiring workers to be vaccinated will worsen already tight labor market.

(Chris Samuels | The Salt Lake Tribune) Utah Solicitor General Melissa Holyoak speaks to members of the Legislature at a meeting of the Business and Labor Interim Committee at the Capitol, Monday, Oct. 4, 2021 in Salt Lake City.

More than 600 Utahns, most of them unmasked and steadfastly opposed to the COVID-19 vaccine or government mandates, packed into five committee rooms Monday morning on Utah’s Capitol Hill to give lawmakers input on a proposed federal vaccine mandate.

Heated rhetoric about tyranny, unfounded claims and apocryphal stories filled the air as the Business and Labor Interim Committee worked to keep public comment on topic and to a rigid one-minute time limit.

(Chris Samuels | The Salt Lake Tribune) Attendees listen to a legislative meeting of the Business and Labor Interim Committee at the Capitol, Monday, Oct. 4, 2021 in Salt Lake City.

Despite the hearty helping of public outrage, the outlines of the state’s strategy to sidestep the planned mandate by the Biden administration began to emerge: Refuse to implement the rule and then hope a lawsuit either blocks the mandate or delays the process long enough to run out the clock.

Last month, President Joe Biden said he’d directed the Occupation Safety Health Administration (OSHA) to create a mandate for businesses with 100 or more employees to either require workers to either be vaccinated against COVID-19 or be tested weekly. Additionally, all federal employees and contractors will be required to be vaccinated with no option for testing.

The mandate, if implemented, would impact only about 3% of businesses in Utah, but those companies account for more than 60% of employees in the state according to figures provided by legislative staffers.

“We’ve not heard any businesses express support for a general mandate from the administration for businesses with 100 or more employees to require vaccines. That being said, we have heard some businesses who have expressed that they would like to require all of their employees to be vaccinated‚” Benjamin Hart, deputy director of the Governor’s Office of Economic Opportunity, said. “Generally, most people are actually very comfortable with the idea of vaccines. The line comes with a mandate from government.”

Many of those businesses, according to Hart, are worried about the effect a mandate would have on an already tight labor market.

“The question we get most is how this is going to impact the workforce right now,” Hart said. “How are they going to find available labor?”

(Chris Samuels | The Salt Lake Tribune) Craig Madsen, owner of J&M Steel Solutions, speaks to members of the Legislature at a meeting of the Business and Labor Interim Committee at the Capitol, Monday, Oct. 4, 2021 in Salt Lake City.

A handful of large business owners echoed those concerns, worrying a federal requirement for vaccines could be crippling.

“I’m 100% in favor of vaccinations. I am not in favor of the feds telling us how to run our business. 68.5% of my employees have been vaccinated, but 19.5% say they won’t be,” Rob Moore, CEO of Big-D Construction warned. “If we have a mandate, we will lose employees.”

“The majority of our workforce has been vaccinated. But a mandate takes away their freedom and right to choose,” Spencer Young, president of Young Automotive Group said. “If we mandate the vaccine or testing, we could lose 30% of our workforce.”

Utah is one of 28 states that handle workplace safety independently from the federal government. Utah’s program is funded jointly through state and federal funds.

When the OSHA rule is finally unveiled, it is expected that Utah would adopt the rule within 30 days. The regulatory agency will issue the rule as an emergency temporary standard (ETS) which is in effect for 6 months. After that time, it will need to be renewed.

But, within the technicalities of how the rule is implemented, state politicians see an opportunity to potentially buck the emergency regulation.

Utah, along with several other states, is already poised to go to court to stop the mandate. That process could be enough to either invalidate the rule or delay things long enough to get past that 6-month period.

“Since 1983, the nine times the ETS has been used, six were challenged and one was upheld. Courts are very skeptical of the use of the ETS,” Melissa Holyoak, Utah Solicitor General said.

(Chris Samuels | The Salt Lake Tribune) Attendees signal their intention to speak against a proposed workplace vaccine mandate during a legislative meeting of the Business and Labor Interim Committee at the Capitol, Monday, Oct. 4, 2021 in Salt Lake City.

There is a risk to that strategy. Utah is required to have workplace standards “as effective as” federal regulations. If the state refuses to implement that forthcoming mandate, it’s possible the state could lose federal funding or even have its independent program invalidated by the federal government. They’re gambling it won’t go that far.

“Several states have pushed back on OSHA regulations before. Utah has not adopted several standards implemented by OSHA,” said Jaceson Maughan, the Utah labor commissioner. He added that several other states are expected to push back against the emergency standard. But, while there’s strength in numbers, there’s still a risk.

“You can only tell the government ‘no’ so many times before they act,” Maughan said.

It will be some time before any of this gets resolved, however.

“There’s no bill right now. We’re still waiting for the Biden administration to take some action,” said Rep. Joel Ferry, R-Brigham City. “We really need to see what comes out of the federal government before we can make those kinds of decisions.”

(Chris Samuels | The Salt Lake Tribune) Kathy Adams of Salt Lake City reacts as her time to speak expires during public comment at a meeting of the Business and Labor Interim Committee at the Capitol, Monday, Oct. 4, 2021 in Salt Lake City. Adams was one of a handful of Utahns who spoke in favor of vaccine mandates.

Public comment took more than two hours on Monday. And while some commenters supported a vaccine mandate as a way to bring the pandemic to an end, much of the time was filled with warnings of tyranny from government overreach, conspiracy theories or claims not backed up by evidence.

“This federal step is only being taken after exhausting virtually every other effort. Our government has tried every possible avenue to get people vaccinated and we are still struggling to protect everyone in our state,” Kathy Adams said. “To get to the point where Utahns can be safe and prosper is going to take this next step. How else do you propose we get to the finish line if not this?”

“The U.S. Constitution forbids the execution of Joe Biden’s plans. Every legitimate government is a minister of God, and all legitimate government workers are therefore men of God. No government on this planet has jurisdiction concerning vaccinations,” one commenter who identified himself as Tony from Eden said.

“I’m calling on the legislative body here in Utah to stand up and defend us against this overreach,” urged Chris Kimball, a business owner.

“My husband works at a bank that has over 100 employees. He could lose his job if he doesn’t get the vaccine. This is a freedom discussion. He’s already had COVID, so he’s immune,” Shannon Valentine told the panel. “We are not against vaccines, but this is about forcing people to do things against their will. Why are we kicking healthy people out of society who won’t get a shot or a test?”

What, if anything, did the hearing accomplish?

“Our intent was to have a fair and balanced hearing. We’ve gotten emails and texts from both sides saying those with differing opinions don’t have a right to speak,” Sen. Curt Bramble, R-Provo, said. “I want to thank everyone here for offering their heartfelt opinions.”

But, some on the committee felt the hours-long hearing was premature.

“We value hearing from Utahns. But this would have been much more productive if we had waited until we knew the details of the ‘vaccination or test’ proposal,” House Minority Leader Brian King, D-Salt Lake City, said. “Without that information, we get what we heard today: a lot of comments that are just speculative and unhelpful.”