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What are Utah lawmakers going to do about Biden’s employer vaccine mandate?

Utah Legislature may call itself into special session to tackle Biden’s vaccine plan, but devil is in the details

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Stickers are available for people who get COVID-19 vaccinations at the South Davis Senior Activity Center in Bountiful on Wednesday, Aug. 25, 2021.

Stickers for people who get COVID-19 vaccinations are pictured at the South Davis Senior Activity Center in Bountiful on Wednesday, Aug. 25, 2021.

Laura Seitz, Deseret News

Depending on the details of President Joe Biden’s vaccine and testing requirements for large employers, Utah lawmakers are poised to do whatever they can to combat the rule.

That includes possibly calling themselves into a special session in October, Senate President Stuart Adams, R-Layton, and House Speaker Brad Wilson, R-Kaysville, told the Deseret News this week.

“What we need is less controversy and more people vaccinated,” Adams said. “When you do a blanket mandatory requirement, you get more controversy, and, in fact, you may not get more people vaccinated. And that’s the problem with President Biden’s blanket (mandate).”

So what are Utah lawmakers going to do? Adams said when the details of Biden’s plan are unveiled and the Utah Legislature determines action is “appropriate,” Adams said lawmakers will consider “calling ourselves back in a special session.”

As currently proposed, Biden’s plan would require employees of large companies with 100 employees or more to either get a COVID-19 vaccine shot, submit to weekly testing or be fired. All federal workers would also be required to get the shot.

The Occupational Safety and Health Administration in coming weeks plans to issue an emergency temporary standard implementing the new requirement, which will cover an estimated 80 million private-sector workers. Businesses that don’t comply could face fines of up to $14,000 per violation.

“So we’re waiting for those details, and if and when we get those details then we decide whether we have a special session or not,” Adams said. That would require at least two-thirds of the Legislature to signal their support to activate the special session.

After the GOP-controlled Utah Legislature’s House and Senate majority caucuses met in closed-door meetings last week to discuss the issue, Wilson said Tuesday he and his fellow Republican lawmakers are “concerned deeply” about Biden’s plan.

“On one hand, we’re supportive of vaccines — super supportive of vaccines,” Wilson said. “But there’s a right way to do it and a wrong way. And I believe, and many believe, that what the president’s done is the wrong way to do it.”

So, Wilson also said Utah lawmakers will wait to see the details of how the Biden administration will direct OSHA to implement “these mandates on employers, and once we have line of sight to what that looks like, we’ll respond accordingly.”

A special session sometime next month, Wilson said, is “very possible.”

“A greater than even chance that we’ll be in a special session come sometime in the month of October,” Wilson said.

Legislators have also scheduled a special Business and Labor Interim Committee hearing on Oct. 4 to gather public input from affected employers and employees.

Can the Utah Legislature call itself into special session for this issue?

Wilson’s and Adams’ comments come after late last week they issued a joint statement — which Gov. Cox later that day signed on to — criticizing Biden’s vaccine plan and accusing the president of overstepping his power.

Under Utah law, the Utah Legislature can call itself into its own special session to pass legislation in emergency situations. Otherwise, Gov. Spencer Cox would need to issue the call.

Asked whether the move to address Biden’s vaccine plan would qualify under the emergency stipulation required in Utah law for the Legislature to call itself into its own special session — even though it would be to address a workplace requirement issue, not to clamp down on the spread of COVID-19 — Adams said he’s confident it would qualify.

“It has to do with the virus. It has to do with COVID-19, and every event we’ve had with COVID-19 has been classified as an emergency action,” Adams said.

Wilson, asked the same question, said he “hadn’t even thought about it” until Tuesday. But regardless, the speaker said it doesn’t matter whether the Utah Legislature or the governor calls the special session.

“We need to collaborate with the governor as well, and whether we call it or he calls it, we haven’t really had those discussions yet,” Wilson said. “Whatever we do, we want to work with the governor and make sure we’re all aligned. Who calls it is kind of immaterial to me, I think, at this point. But we’ll see.”

In response to questions whether Cox plans or is considering calling a special session in October, the governor’s office issued a statement saying, “We haven’t seen an order from the administration, so it is too early to determine next steps.”

Is Biden’s vaccination plan unconstitutional?

Adams said even though it’s currently unclear what Utah lawmakers would include in legislation to address Biden’s plan, he wants it to be clear the federal government needs to follow the Constitution.

“Even though we don’t have an idea what the legislation would look like, I think it would be very clear that we ought to follow the Constitution, that we believe that dictating internal policies to businesses like that probably violates the Constitution, and that the president of the United States ought to follow the Constitution,” Adams said.

Experts including Jennifer Olivia, director of the Center for Health and Pharmaceutical Law at Seton Hall University, have defended Biden’s plan as constitutional, arguing the “U.S. Supreme court has long held Americans do not have a constitutional right to harm their fellow citizens,” she wrote in an opinion piece for NBC News.

Asked whether Biden’s vaccine plan is truly a “blanket” mandate because it allows employees to either choose testing or the shot, Wilson argued it clearly is.

“It is a mandate. It’s a mandate to do one thing or another,” he said. “Either way, you’re putting an extra burden on businesses and interfering in their relationship with their employees in a way that, you know, I don’t think makes sense.”

Wilson argued there’s “just other ways to deal with this.”

“We want people to get vaccinated, but this is not the right path to be on.”

What should be done instead?

Adams said he’s more supportive of the path Utah schools have used for decades: to require vaccines but allow exceptions for religious, medical and personal reasons.

“That’s been the case for K-12 for a long time, and it’s been very successful and noncontroversial,” Adams said.

He noted Utah lawmakers decided to apply those requirements to Utah colleges and universities, and that, too, he said, has been noncontroversial and “wildly successful.”

Asked whether he was supportive of requiring COVID-19 vaccines for businesses but with those exceptions, Adams said it was only a suggestion, and not something he would “dictate.”

“So I suppose if a private company wanted to mandate vaccines 100%, well that’s their option. They may lose employees, they may not, that’s probably their right,” Adams said. “I’m not going to tell them they have to require three stamp offs or anything else. So I think the company should make up their mind, but I do think that they should have that right to make those decisions.”

Adams said if businesses make those choices, “I think it would be a good idea to give them a little guidance as to what’s working and what’s not. Mandatory vaccinations appear to be not working very well because they cause controversy.”

“I think it would be a good idea to give them a little guidance as to what’s working and what’s not, and mandatory vaccinations appear to be not working very well because they cause controversy,” Adams said. “What works the best is a requirement with an exemption.”