Employer COVID-19 vaccine mandates and exemptions.

22LSO-0440
2022
STATE OF WYOMING
22LSO-0440
Numbered
2.0

SENATE FILE NO. SF0114

Employer COVID-19 vaccine mandates and exemptions.

Sponsored by: Senator(s) Dockstader, Driskill, Ellis and Landen and Representative(s) Barlow

A BILL

for

AN ACT relating to labor and employment; implementing requirements governing employer COVID-19 vaccine mandates; providing definitions; requiring employers to provide exemptions to employees as part of any employer required COVID-19 vaccine mandate; specifying grounds for granting exemptions; providing employer protections as specified; providing for the investigation of employee COVID-19 vaccine mandate complaints by the department of workforce services; authorizing administrative review of a department determination by the office of administrative hearings; providing penalties for employers who violate the requirements governing employer COVID-19 vaccine mandates; specifying the applicability of requirements governing employer COVID-19 vaccine mandates under the Wyoming employment security law; providing exceptions to requirements governing employer COVID-19 vaccine mandates for conflicting federal law or regulations; requiring rulemaking; providing a sunset date; and providing for an effective date.

Be It Enacted by the Legislature of the State of Wyoming:

Section 1
.

(a)

This act shall be known as and may be cited as the "Employer Vaccination Mandate Law."

(b)

As used in this section:

(i)

"COVID-19" means as defined by W.S. 1
‑
1
‑
141(a)(ii);

(ii)

"COVID
‑
19 vaccine" means any vaccine that is marketed to prevent COVID
‑
19 or any vaccine that is marketed to diminish or decrease the symptoms of COVID
‑
19;

(iii)

"Employer" means the state of Wyoming or any political subdivision or board, commission, department, institution or school district thereof and every other person employing two (2) or more employees within the state. "Employer" shall not include any religious organization or association or any other entity subject to the requirements imposed by 86 Fed. Reg. 61,555 (November 5, 2021), promulgated by the centers for Medicaid and Medicare services.

(c)

No employer shall impose a COVID-19 vaccine mandate for any full-time, part-time, or contract employee without providing individual vaccine exemptions that allow the employee to opt out of the mandate.

(d)

An employer shall grant an exemption as specified in this subsection to an employee for any COVID-19 vaccine mandate and subject to the following requirements:

(i)

To receive an exemption based on medical grounds, including pregnancy or anticipated pregnancy, an
employee shall submit to the employer an exemption statement, dated and signed by a physician, physician assistant or an advanced practice registered nurse who is licensed in this state and whose license is active and in good standing. To qualify for an exemption under this paragraph, the exemption statement shall provide that, in the professional opinion of the physician, physician assistant or advanced practice registered nurse, a COVID-19 vaccination is not in the best medical interest of the employee;

(ii)

To receive an exemption based on religious grounds, an employee shall submit to the employer an exemption statement verifying that the employee declines the COVID-19 vaccination due to a sincerely held religious belief;

(iii)

To receive an exemption based on COVID-19 immunity, an employee shall submit to the employer an exemption statement verified by competent medical evidence demonstrating that the employee has an immunity to COVID-19, which evidence shall be documented from the results of
valid laboratory tests performed on the employee. The department of health shall promulgate rules specifying the standard under which medical evidence demonstrating

COVID
‑
19 immunity shall be evaluated by the employer, including the maximum time for which laboratory test results shall be valid for determining a COVID-19 immunity;

(iv)

To receive an exemption based on regular COVID-19 testing, an employee shall present to the employer an exemption statement verifying that the employee agrees to comply with regular testing for the presence of COVID-19 using tests approved or authorized by the United States food and drug administration to detect a current COVID-19 infection. Under this paragraph, the test shall be administered at no cost to the employee and at times and locations established by the employer;

(v)

To receive an exemption based on employer-provided personal protective equipment, the employee shall submit to the employer an exemption statement verifying that the employee agrees to comply with the employer's reasonable written requirement to use employer-provided
personal protective equipment when in the presence of other employees or persons or other reasonable measures to prevent the spread of COVID-19 in the workplace.

(e)

Any employee request for a COVID-19 vaccine exemption under subsection (d) of this section shall be submitted on a completed exemption statement and accompanied by a certification form authorized by the department of health. All certification forms shall state the date and place of execution and immediately above the employee's signature state the following:

"I certify under penalty of false swearing that the foregoing is true".

(f)

An employee who knowingly makes a false certification under subsection (e) of this section is guilty of a misdemeanor punishable by imprisonment for not more than six (6) months, a fine of not more than seven hundred fifty dollars ($750.00), or both.

(g)

No employer shall impose a policy or requirement that prohibits any employee from receiving, or from having previously received, a COVID-19 vaccination.

(h)

Any employer who has granted an exemption to an employee under paragraph (d)(i), (ii) or (iii) of this section, may require the exempted employee to comply with the employer's reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or persons and may require other reasonable measures to prevent the spread of COVID-19 in the workplace.

(j)

Nothing in this section shall prohibit an employer from disciplining an employee or terminating the employment relationship for any reason not contrary to law, including:

(i)

Failing to comply with the employer's mandatory COVID-19 vaccination policy for an employee who did not qualify for or was otherwise not granted an exemption under subsection (d) of this section;

(ii)

Making a false statement or submitting fraudulent information as part of any exemption statement submitted by the employee to the employer requesting a COVID-19 vaccine exemption under subsection (d) of this section;

(iii)

Failing to comply with the employer's directions regarding regular COVID-19 testing in accordance with paragraph (d)(iv) of this section; or

(iv)

Failing to comply with the employer's reasonable written policy requiring the use of personal protective equipment or other reasonable measures to prevent the spread of COVID-19 in the workplace.

(k)

Any employer who grants an exemption to any employee in accordance with subsection (d) of this section shall not be subject to any penalty imposed under W.S. 27
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11
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107 based on the alleged transmission of COVID-19 in the employer's workplace.

(m)

Any employee who was terminated by their employer because the employee refused to be vaccinated under the employer's COVID-19 vaccine mandate and who before the termination applied for and was entitled to an exemption under subsection (d) of this section may file a complaint with the department of workforce services, labor standards division. The complaint shall allege the facts and circumstances under which the employee was terminated, including information on the type of exemption that the employee applied for and which was improperly denied by the employer in violation of the subsection (d) of this section. Upon receipt of a complaint under this subsection, the department of workforce services, labor standards division, shall conduct an investigation of the complaint, which investigation shall determine:

(i)

Whether the employer imposed a COVID-19 vaccine mandate;

(ii)

Whether the employee submitted a proper exemption statement and was entitled to a COVID-19 vaccine exemption under subsection (d) of this section;

(iii)

Whether the employee was terminated because of their refusal to be vaccinated as required under the employer's COVID-19 vaccine mandate; and

(iv)

Any other question the division deems relevant to disposition of the issue raised in the complaint.

(n)

If the department of workforce services, labor standards division, investigation determines an employer did not violate subsection (d) of this section by refusing to grant a COVID-19 vaccine exemption, the employee may request a de novo hearing before the office of administrative hearings by submitting a written request to the division within fifteen (15) days of the date of the department's determination. If the division investigation determines an employer violated subsection (d) of this section by refusing to grant a COVID-19 vaccine exemption, the terminated employee's complaint shall be referred to the office of administrative hearings for a de novo hearing. The office of administrative hearings shall
initiate and conduct a contested case in accordance with procedures of the Wyoming Administrative Procedure Act and the Wyoming Rules of Civil Procedure as applicable under rules of the office of administrative hearings. In the event the hearing examiner appointed by the office of administrative hearings concludes the employer violated subsection (d) of this section by refusing to grant a COVID-19 vaccine exemption, the hearing officer shall determine whether the terminated employee should be reinstated in their employment, the amount of any back pay that should be awarded to the employee, if any, and the penalty to be assessed against the employer in accordance with subsection (o) of this section.

(o)

Any employer with less than one hundred (100) employees in this state who violates subsection (d) of this section by refusing to grant a COVID-19 vaccine exemption to an employee who was entitled the exemption shall be liable for a civil fine not to exceed one thousand dollars ($1,000.00) per violation. Any employer with more than one hundred (100) employees in this state who violates subsection (d) of this section by refusing to grant a
COVID-19 vaccine exemption shall be liable for a civil fine not to exceed two thousand five hundred dollars ($2,500.00) per violation. In determining the amount of fine to be levied under this subsection, the hearing examiner shall consider:

(i)

Whether the employer knowingly or willfully violated subsection (d) of this section;

(ii)

Whether the employer operated in good faith in attempting to comply with subsection (d) of this section;

(iii)

Whether the employer took or attempted to take appropriate action to correct any alleged violation;

(iv)

Whether the employer had previously been found to have violated subsection (d) of this section; and

(v)

Any other mitigating or aggravating factor that fairness or due process requires.

(p)

A final decision of a hearing examiner under subsection (n) of this section shall be subject to judicial review under W.S. 16-3-114 and in accordance with the Wyoming Rules of Appellate Procedure.

(q)

Any employee terminated by their employer for refusing to comply with a COVID-19 vaccination mandate or who resigns from their employment rather than comply with a COVID-19 vaccination mandate, and whose employer did not offer or improperly denied a COVID-19 vaccine exemption required under subsection (d) of this section, shall not be disqualified from benefit entitlement under the Wyoming Employment Security Law for having left their most recent work voluntarily without good cause attributable directly to their employment for misconduct connected with their work under W.S. 27-3-311(a)(i) or (f).

(r)

The department of health shall adopt necessary rules, and may adopt emergency rules under this subsection, specifying:

(i)

The circumstances under which, and the maximum timeframe within which, an employee who anticipates a pregnancy will qualify for a medical grounds exemption under paragraph (d)(i) of this section;

(ii)

Standards for submitting competent medical evidence under paragraph (d)(iii) of this section, including the maximum time for which laboratory test results shall be valid for determining that an employee has an immunity to COVID-19;

(iii)

Standards and requirements regarding the frequency and methods of testing which may be used by employers under paragraph (d)(iv) of this section; and

(iv)

Any other standards or requirements determined by the department to be necessary to administer this section.

(s)

The department of health shall make available uniform forms for use by:

(i)

A physician, a physician assistant or an advanced practice registered nurse to document an exemption based on medical grounds under paragraph (d)(i) of this section;

(ii)

An employee to submit an exemption based on religious grounds under paragraph (d)(ii) of this section;

(iii)

An employee to submit an exemption based on COVID-19 immunity under paragraph (d)(iii) of this section, which includes the laboratory test criteria for proof of a COVID-19 immunity;

(iv)

An employee to submit an exemption based on regular testing under paragraph (d)(iv) of this section, which includes the required frequency of testing and acceptable tests that may be used to receive the exemption; and

(v)

An employee to submit an exemption based on employer provided personal protective equipment under paragraph (d)(v) of this section.

(t)

The department of workforce services shall promulgate necessary rules for the investigation of employee complaints and issuance of determinations under subsection (m) of this section.

(u)

This section shall not apply to any employer who:

(i)

Is required by federal law or regulation, or through a term of a contract with the federal government, to implement and enforce a COVID-19 vaccine mandate for its employees; or

(ii)

Is covered by any federal law or regulation that prohibits the employer from complying with this act, while such law, regulation or contract remains in effect over the employer.

(w)

This section is repealed effective June 30, 2023.

Section 2.

The department of workforce services and the department of health shall widely disseminate and make
available this act to all employers and employees in Wyoming. The dissemination required under this act shall at the minimum require each department to conspicuously post this act in its entirety on the departments' respective official websites and to make copies of this act available to the public.

Section 3.

The provisions of this act regulating employer COVID
‑
19 vaccine mandates shall apply only to employers that require or mandate that their employees receive a COVID
‑
19 vaccination as a condition of employment that takes effect on and after the effective date of this act and to employers who have issued a COVID-19 vaccine mandate or requirement before the effective date of this act but that takes effect on or after the effective date of this act.

Section 4
.

This act is effective July 1, 2022
.

(END)

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SF0114