2022 22LSO-0440
STATE OF WYOMING
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
1 AN ACT relating to labor and employment; implementing
2 requirements governing employer COVID-19 vaccine mandates;
3 providing definitions; requiring employers to provide
4 exemptions to employees as part of any employer required
5 COVID-19 vaccine mandate; specifying grounds for granting
6 exemptions; providing employer protections as specified;
7 providing for the investigation of employee COVID-19
8 vaccine mandate complaints by the department of workforce
9 services; authorizing administrative review of a department
10 determination by the office of administrative hearings;
11 providing penalties for employers who violate the
12 requirements governing employer COVID-19 vaccine mandates;
13 specifying the applicability of requirements governing
14 employer COVID-19 vaccine mandates under the Wyoming
15 employment security law; providing exceptions to
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1 requirements governing employer COVID-19 vaccine mandates
2 for conflicting federal law or regulations; requiring
3 rulemaking; providing a sunset date; and providing for an
4 effective date.
5
6 Be It Enacted by the Legislature of the State of Wyoming:
7
8 Section 1.
9
10 (a) This act shall be known as and may be cited as
11 the "Employer Vaccination Mandate Law."
12
13 (b) As used in this section:
14
15 (i) "COVID-19" means as defined by W.S.
16 1-1-141(a)(ii);
17
18 (ii) "COVID-19 vaccine" means any vaccine that
19 is marketed to prevent COVID-19 or any vaccine that is
20 marketed to diminish or decrease the symptoms of COVID-19;
21
22 (iii) "Employer" means the state of Wyoming or
23 any political subdivision or board, commission, department,
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1 institution or school district thereof and every other
2 person employing two (2) or more employees within the
3 state. "Employer" shall not include any religious
4 organization or association or any other entity subject to
5 the requirements imposed by 86 Fed. Reg. 61,555 (November
6 5, 2021), promulgated by the centers for Medicaid and
7 Medicare services.
8
9 (c) No employer shall impose a COVID-19 vaccine
10 mandate for any full-time, part-time, or contract employee
11 without providing individual vaccine exemptions that allow
12 the employee to opt out of the mandate.
13
14 (d) An employer shall grant an exemption as specified
15 in this subsection to an employee for any COVID-19 vaccine
16 mandate and subject to the following requirements:
17
18 (i) To receive an exemption based on medical
19 grounds, including pregnancy or anticipated pregnancy, an
20 employee shall submit to the employer an exemption
21 statement, dated and signed by a physician, physician
22 assistant or an advanced practice registered nurse who is
23 licensed in this state and whose license is active and in
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1 good standing. To qualify for an exemption under this
2 paragraph, the exemption statement shall provide that, in
3 the professional opinion of the physician, physician
4 assistant or advanced practice registered nurse, a COVID-19
5 vaccination is not in the best medical interest of the
6 employee;
7
8 (ii) To receive an exemption based on religious
9 grounds, an employee shall submit to the employer an
10 exemption statement verifying that the employee declines
11 the COVID-19 vaccination due to a sincerely held religious
12 belief;
13
14 (iii) To receive an exemption based on COVID-19
15 immunity, an employee shall submit to the employer an
16 exemption statement verified by competent medical evidence
17 demonstrating that the employee has an immunity to COVID-
18 19, which evidence shall be documented from the results of
19 valid laboratory tests performed on the employee. The
20 department of health shall promulgate rules specifying the
21 standard under which medical evidence demonstrating
22 COVID-19 immunity shall be evaluated by the employer,
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1 including the maximum time for which laboratory test
2 results shall be valid for determining a COVID-19 immunity;
3
4 (iv) To receive an exemption based on regular
5 COVID-19 testing, an employee shall present to the employer
6 an exemption statement verifying that the employee agrees
7 to comply with regular testing for the presence of COVID-19
8 using tests approved or authorized by the United States
9 food and drug administration to detect a current COVID-19
10 infection. Under this paragraph, the test shall be
11 administered at no cost to the employee and at times and
12 locations established by the employer;
13
14 (v) To receive an exemption based on employer-
15 provided personal protective equipment, the employee shall
16 submit to the employer an exemption statement verifying
17 that the employee agrees to comply with the employer's
18 reasonable written requirement to use employer-provided
19 personal protective equipment when in the presence of other
20 employees or persons or other reasonable measures to
21 prevent the spread of COVID-19 in the workplace.
22
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1 (e) Any employee request for a COVID-19 vaccine
2 exemption under subsection (d) of this section shall be
3 submitted on a completed exemption statement and
4 accompanied by a certification form authorized by the
5 department of health. All certification forms shall state
6 the date and place of execution and immediately above the
7 employee's signature state the following:
8
9 "I certify under penalty of false swearing that the
10 foregoing is true".
11
12 (f) An employee who knowingly makes a false
13 certification under subsection (e) of this section is
14 guilty of a misdemeanor punishable by imprisonment for not
15 more than six (6) months, a fine of not more than seven
16 hundred fifty dollars ($750.00), or both.
17
18 (g) No employer shall impose a policy or requirement
19 that prohibits any employee from receiving, or from having
20 previously received, a COVID-19 vaccination.
21
22 (h) Any employer who has granted an exemption to an
23 employee under paragraph (d)(i), (ii) or (iii) of this
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1 section, may require the exempted employee to comply with
2 the employer's reasonable written requirement to use
3 employer-provided personal protective equipment when in the
4 presence of other employees or persons and may require
5 other reasonable measures to prevent the spread of COVID-19
6 in the workplace.
7
8 (j) Nothing in this section shall prohibit an
9 employer from disciplining an employee or terminating the
10 employment relationship for any reason not contrary to law,
11 including:
12
13 (i) Failing to comply with the employer's
14 mandatory COVID-19 vaccination policy for an employee who
15 did not qualify for or was otherwise not granted an
16 exemption under subsection (d) of this section;
17
18 (ii) Making a false statement or submitting
19 fraudulent information as part of any exemption statement
20 submitted by the employee to the employer requesting a
21 COVID-19 vaccine exemption under subsection (d) of this
22 section;
23
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1 (iii) Failing to comply with the employer's
2 directions regarding regular COVID-19 testing in accordance
3 with paragraph (d)(iv) of this section; or
4
5 (iv) Failing to comply with the employer's
6 reasonable written policy requiring the use of personal
7 protective equipment or other reasonable measures to
8 prevent the spread of COVID-19 in the workplace.
9
10 (k) Any employer who grants an exemption to any
11 employee in accordance with subsection (d) of this section
12 shall not be subject to any penalty imposed under W.S.
13 27-11-107 based on the alleged transmission of COVID-19 in
14 the employer's workplace.
15
16 (m) Any employee who was terminated by their employer
17 because the employee refused to be vaccinated under the
18 employer's COVID-19 vaccine mandate and who before the
19 termination applied for and was entitled to an exemption
20 under subsection (d) of this section may file a complaint
21 with the department of workforce services, labor standards
22 division. The complaint shall allege the facts and
23 circumstances under which the employee was terminated,
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1 including information on the type of exemption that the
2 employee applied for and which was improperly denied by the
3 employer in violation of the subsection (d) of this
4 section. Upon receipt of a complaint under this subsection,
5 the department of workforce services, labor standards
6 division, shall conduct an investigation of the complaint,
7 which investigation shall determine:
8
9 (i) Whether the employer imposed a COVID-19
10 vaccine mandate;
11
12 (ii) Whether the employee submitted a proper
13 exemption statement and was entitled to a COVID-19 vaccine
14 exemption under subsection (d) of this section;
15
16 (iii) Whether the employee was terminated
17 because of their refusal to be vaccinated as required under
18 the employer's COVID-19 vaccine mandate; and
19
20 (iv) Any other question the division deems
21 relevant to disposition of the issue raised in the
22 complaint.
23
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1 (n) If the department of workforce services, labor
2 standards division, investigation determines an employer
3 did not violate subsection (d) of this section by refusing
4 to grant a COVID-19 vaccine exemption, the employee may
5 request a de novo hearing before the office of
6 administrative hearings by submitting a written request to
7 the division within fifteen (15) days of the date of the
8 department's determination. If the division investigation
9 determines an employer violated subsection (d) of this
10 section by refusing to grant a COVID-19 vaccine exemption,
11 the terminated employee's complaint shall be referred to
12 the office of administrative hearings for a de novo
13 hearing. The office of administrative hearings shall
14 initiate and conduct a contested case in accordance with
15 procedures of the Wyoming Administrative Procedure Act and
16 the Wyoming Rules of Civil Procedure as applicable under
17 rules of the office of administrative hearings. In the
18 event the hearing examiner appointed by the office of
19 administrative hearings concludes the employer violated
20 subsection (d) of this section by refusing to grant a
21 COVID-19 vaccine exemption, the hearing officer shall
22 determine whether the terminated employee should be
23 reinstated in their employment, the amount of any back pay
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1 that should be awarded to the employee, if any, and the
2 penalty to be assessed against the employer in accordance
3 with subsection (o) of this section.
4
5 (o) Any employer with less than one hundred (100)
6 employees in this state who violates subsection (d) of this
7 section by refusing to grant a COVID-19 vaccine exemption
8 to an employee who was entitled the exemption shall be
9 liable for a civil fine not to exceed one thousand dollars
10 ($1,000.00) per violation. Any employer with more than one
11 hundred (100) employees in this state who violates
12 subsection (d) of this section by refusing to grant a
13 COVID-19 vaccine exemption shall be liable for a civil fine
14 not to exceed two thousand five hundred dollars ($2,500.00)
15 per violation. In determining the amount of fine to be
16 levied under this subsection, the hearing examiner shall
17 consider:
18
19 (i) Whether the employer knowingly or willfully
20 violated subsection (d) of this section;
21
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1 (ii) Whether the employer operated in good faith
2 in attempting to comply with subsection (d) of this
3 section;
4
5 (iii) Whether the employer took or attempted to
6 take appropriate action to correct any alleged violation;
7
8 (iv) Whether the employer had previously been
9 found to have violated subsection (d) of this section; and
10
11 (v) Any other mitigating or aggravating factor
12 that fairness or due process requires.
13
14 (p) A final decision of a hearing examiner under
15 subsection (n) of this section shall be subject to judicial
16 review under W.S. 16-3-114 and in accordance with the
17 Wyoming Rules of Appellate Procedure.
18
19 (q) Any employee terminated by their employer for
20 refusing to comply with a COVID-19 vaccination mandate or
21 who resigns from their employment rather than comply with a
22 COVID-19 vaccination mandate, and whose employer did not
23 offer or improperly denied a COVID-19 vaccine exemption
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1 required under subsection (d) of this section, shall not be
2 disqualified from benefit entitlement under the Wyoming
3 Employment Security Law for having left their most recent
4 work voluntarily without good cause attributable directly
5 to their employment for misconduct connected with their
6 work under W.S. 27-3-311(a)(i) or (f).
7
8 (r) The department of health shall adopt necessary
9 rules, and may adopt emergency rules under this subsection,
10 specifying:
11
12 (i) The circumstances under which, and the
13 maximum timeframe within which, an employee who anticipates
14 a pregnancy will qualify for a medical grounds exemption
15 under paragraph (d)(i) of this section;
16
17 (ii) Standards for submitting competent medical
18 evidence under paragraph (d)(iii) of this section,
19 including the maximum time for which laboratory test
20 results shall be valid for determining that an employee has
21 an immunity to COVID-19;
22
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1 (iii) Standards and requirements regarding the
2 frequency and methods of testing which may be used by
3 employers under paragraph (d)(iv) of this section; and
4
5 (iv) Any other standards or requirements
6 determined by the department to be necessary to administer
7 this section.
8
9 (s) The department of health shall make available
10 uniform forms for use by:
11
12 (i) A physician, a physician assistant or an
13 advanced practice registered nurse to document an