The Utah legislature wrapped up its seven-week legislative session on March 1, 2024.  In addition to passing a #MeToo-inspired law prohibiting confidentiality clauses regarding sexual misconduct, the legislature also passed two laws now in effect related to religious expression in the workplace for both public and private employers.

H.B. 396 – Workplace Discrimination Amendments

H.B. 396 addresses religious expression in the workplace for all Utah employers subject to the Utah Antidiscrimination Act. The law took effect on May 1, 2024. H.B. 396 generally prohibits an employer from compelling an employee to communicate or otherwise act in a manner that the employee believes would burden or offend the employee’s sincerely held religious beliefs. The law also provides an obligation and process for an employer to accommodate an employee’s religious beliefs unless undue burden is established.

Utah Code Section 34A-5-112 already required employers subject to the Utah Antidiscrimination Act to allow employees to express “religious or moral beliefs and commitments in the workplace” in a “reasonable, non-disruptive, and non-harassing way… unless the expression is in direct conflict with the essential business-related interests of the employer.” The statute also already mandated that employers not discharge, demote, terminate, refuse to hire, retaliate against, harass, or discriminate against employees “for lawful expression or expressive activity outside of the workplace regarding the person’s religious, political, or personal convictions, including convictions about marriage, family, or sexuality,” unless the expression is in direct conflict with the business interests of the employer.

H.B. 396 amends that section of the Utah Antidiscrimination Act to also require that an employer “not compel an employee to engage in religiously objectionable expression that the employee reasonably believes would burden or offend the employee's religious, moral, or conscientious beliefs, unless accommodating the employee would cause an undue burden to the employer by substantially interfering with the employer’s: (a) core mission or the employer’s ability to conduct business in an effective or financially reasonable manner; or (b) ability to provide training and safety instruction for the job.” (emphasis added). H.B. 396’s definition of “religiously objectionable expression” is broad and includes “expression, action or inaction that burdens or offends a sincerely held religious belief, including dress and grooming requirements, speech, scheduling, prayer, and abstention, including abstentions relating to healthcare.”

Under H.B. 396, and employee may request an accommodation if they believe the employer is requiring them to engage in religiously objectional expression. In order to receive an accommodation, employees must request that the employer comply with the provisions of the law by granting the accommodation and provide the employer with a reasonable opportunity to do so.  During the legislative session, sponsors of H.B. 396 expressed that the bill was an attempt to codify the United States Supreme Court’s 2023 ruling in Groff v. DeJoy, which clarified the undue hardship standard in religious accommodation claims under Title VII of the Civil Rights Act of 1964, as amended. The law also makes clear that employers with fewer than 15 employees are not required to grant scheduling accommodations to employees.

H.B. 460 - Government Employee Conscience Protection Amendments

In addition to H.B. 396, the Utah legislature passed H.B. 460, which applies only to “Governmental entity” employers. This bill also took effect May 1, 2024, and  expands the circumstances in which employers must provide reasonable accommodations to employees. H.B. 460 permits employees to request that their employer relieve them from performing tasks that conflict with their sincerely held religious beliefs or “conscience.” The term “conscience” is defined as “a sincerely held belief as to the rightness or wrongness of an action or inaction.” Employees must submit a written request to their supervisor, within timelines provided in the statute, explaining why performing the task would conflict with the employee's sincerely held religious beliefs or conscience. Governmental entities may not deny an employee’s reasonable request if the employee complies with the procedural requirements for requesting the accommodation and “relieving the employee from the task would not impose an undue hardship on the governmental entity.”  Undue hardship is defined as:

a substantial burden, privation, or adversity on a governmental entity that would result from granting an employee's request to be relieved from performing a certain task when considering all relevant factors, including:

(i) the practical impact on the governmental entity in light of the nature, size, and operating cost of the governmental entity;

(ii) the disruption of the governmental entity's operations;

(iii) the nature of the employee's duties;

(iv) the number of employees the governmental entity will be required to grant a request to if the governmental entity grants the employee's request;

(v) the type of workplace; and

(vi) the number of requests by the employee in the preceding 12 months from the day on which the employee submitted the request.

The law also provides various exceptions where a governmental entity is not required to grant an accommodation, including: “(1) the request is to be relieved from performing a task that is part of training or safety instructions directly related to the employee's employment; (2) granting the request would result in a deficit in the amount of work for which the employee is compensated; (3) granting the request would create a conflict with an existing legal obligation and the governmental entity cannot avoid the conflict if the governmental entity grants the employee's request; (4) the employee is a first responder and the request by the employee is to be relieved from performing a task that involves protecting the safety of the public; or (5) the employee's asserted religious beliefs or conscience described is being asserted for an improper purpose.”

The law also requires government entities to create policies related to accommodations of this nature, imposes procedures for how to respond to accommodation requests, prohibits retaliatory action against employees for submitting meritorious accommodation requests, and creates a private right of action for employees who are unlawfully denied accommodations under the statute.

Takeaways

Public and private employers in Utah subject to either statute should review their religious accommodation process to ensure compliance with the new laws and seek legal counsel in developing policies for compliance going forward.

One specific area of concern for covered employers is how these new laws may interplay with existing internal policies or guidance from other agencies related to statutory harassment prohibitions.  For example, the EEOC’s recent guidance reiterates its position that intentional and repeated use of a transgender employee’s wrong name or pronouns could contribute to an unlawful hostile work environment. The interplay of harassment prohibitions and other employee rights, like speech or those related to religious or “conscience” accommodation, is highly fact-specific and requires careful consideration by employers.  Employers should consult with legal counsel for guidance in these areas.