Utah lawmakers want to defy Biden’s COVID-19 vaccine mandate for private businesses. There aren’t many options available.

Senate President Stuart Adams wants exemptions for personal reasons and so-called ‘natural immunity.’

(Trent Nelson | The Salt Lake Tribune) Spencer Lowe administers a dose of the Pfizer COVID-19 vaccine at a drive-thru event organized by the Utah County Health Department in Spanish Fork on Friday, Sept. 10, 2021.

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The COVID-19 federal vaccine or testing rules for companies with 100 or more employees were issued on Thursday morning. Utah lawmakers were already poised to consider some action during the upcoming special legislative session to push back against the federal mandate. Now that the policy is public, lawmakers have more incentive to act. But, the question remains as to what they can do?

The aggressive action from the Biden administration requires all companies with 100 or more employees to have all workers fully vaccinated by Jan. 4. Workers who refuse to get vaccinated must undergo weekly testing and wear masks while in the workplace. Employers must also give staffers paid time off to get vaccinated and sick time to recover from any side effects. Workers can ask for exemptions from the vaccine for medical or religious reasons. Companies that don’t comply could face thousands of dollars in fines. The requirement will affect about 84 million private-sector workers nationwide. The mandate could impact about 65% of the total labor force in Utah, according to figures from Utah legislative analysts.

Lawmakers have been pushing Gov. Spencer Cox to include action on vaccine mandates on the agenda for next week’s special session to finish the redistricting process.

Legislative sources tell The Salt Lake Tribune that any attempt to alter, delay, or even block a federal vaccine mandate has not been discussed for several weeks. In an interview with The Tribune last week, House Speaker Brad Wilson, R-Kaysville, thought the Biden administration might be bluffing on implementing the mandate, noting the president had announced the requirements nearly two months ago but had not taken any further action.

“I wouldn’t be surprised if it (the rule) never came down,” Wilson said. “It’s remarkable to me that you can take this long to do something this simple.”

The most immediate course of action is through the courts. Last week Utah joined with several other states in suing the Biden administration over the requirement that employees of federal contractors get vaccinated with no option for testing.

The legal process can be lengthy, and legislative leaders expect there will be pressure from the public and other legislators to take action now. But their hands are mostly tied.

With the federal mandate, there are not a lot of options for lawmakers because the Supremacy Clause of the Constitution says when state and federal statutes conflict, the federal law wins. Anything outside of a strongly worded resolution, which does not carry any force of law, would not apply to any businesses affected by the mandate.

That doesn’t mean there won’t be an attempt.

“I’d like to try to do something,” Senate President Stuart Adams, R-Layton, said Thursday.

Adams says he thinks lawmakers should try to expand the reasons employees can opt-out. Already there are exemptions for religious or medical reasons. Adams believes there should be a personal exemption for employees who, for whatever reason, are opposed to the vaccine.

“I do believe there are sincere people who have problems with the vaccine, and we should try to make an accommodation for them,” Adams said.

The other change Adams would like to see is making an exemption from the vaccine requirement for those who previously had COVID-19 and recovered, or what is referred to as “natural immunity” from the virus.

“We should count those who have had COVID before among those who have been vaccinated. That should count as a vaccine,” Adams said.

Scientific opinion is divided on the “natural immunity” argument. Some research suggests vaccination gives longer and more robust protection against the virus, while other studies found a lower risk of infection against the delta variant among those who have recovered from a previous infection.

The incentive to take some legislative action could be bolstered by politics. It is unlikely Republican lawmakers will pay a political price for pushing back against what many of their voters may see as an overreach by the federal government, even if their actions are ultimately ineffective. Other Republican-led states like Texas, Florida, Arkansas, and Montana have taken steps to block or include more exemptions for vaccine mandates from private businesses.

Any action may come down to Gov. Spencer Cox. He controls what topics end up on the agenda for the special session that begins on the 9th. Legislative leaders are currently negotiating that list with the governor.

In May, Cox angered lawmakers when he refused to include two items dealing with critical race theory in Utah’s schools and an effort to declare the state a “Second Amendment sanctuary” on the list of bills for that special session. Lawmakers went around him to pass resolutions on those issues.

Gov. Cox and Lt. Gov. Deidre Henderson condemned the new federal vaccine rule in a joint statement on Thursday afternoon, calling the mandate a “serious mistake.”

“It’s outside the authority of the federal government and, as public health officials have pointed out, it is likely to exacerbate and broaden public resistance to all vaccines, which may outweigh any marginal benefit in terms of increased population immunity,” they said.

The pair added they were committed to “fighting the mandate through every possible avenue.”