On November 18, 2021, Florida Governor Ron DeSantis executed a new state law that immediately banned COVID-19 vaccine mandates for employees of private and public employers.
Florida employers now need to figure out how to comply with the new Florida law while also complying with the COVID-19 vaccine mandate of the Federal Department of Labor, Occupational Safety and Health Administration where applicable. Work (OSHA) Emergency Temporary Standard (ETS), Centers for Medicare & Medicaid Services (CMS) Health Care Staff Vaccination Interim Vaccination Final Rule and the federal contractor’s vaccine mandate in Federal Executive Order 14042.
Florida Private Employer Vaccination Mandates and Individual Exemptions
Florida law § 381.00317 prohibits private employers from imposing a COVID-19 vaccination mandate on employees, unless private employers also allow five different individual exemptions for employees. Exemption forms created by the State of Florida are posted here.
The Florida law prohibition extends to “any full-time, part-time or contract employee.” Florida law does not define “employee” or “contract employee” in its text. It is assumed that a “contract employee” means an independent contractor, but the law is not clear. Florida law also does not refer to employee applicants, so it currently appears that mandatory COVID-19 vaccines for applicants remain permitted.
The five individual exemptions set out in the new Florida law are as follows:
- Medical reasons.
- Religious reasons.
- “Immunity” based on previous infection to COVID-19.
- Accept to be tested regularly.
- Accept the use of personal protective equipment (PPE).
To qualify for an individual exemption, Florida employees must submit an exemption statement, which varies depending on the exemption category sought.
- A medical exemption declaration must be completed by a healthcare professional as defined by law. Although Florida law does not provide detailed explanations, the form provided by the State of Florida is very straightforward and simply requires the healthcare professional to check a box and complete the form. Florida law also provides that pregnancy or “anticipated pregnancy” (which at this time does not appear to have any restriction as to timing) is a medical exemption.
- A religious exemption statement must mention the employee’s sincere religious belief. Again, Florida law lacks details regarding this exemption, but the form provided by the State of Florida again requires the employee to complete a statement stating the employee’s sincere religious belief (including moral belief or ethics). The form expressly prohibits the employer from challenging the veracity of the employee’s belief.
- An immunity exemption statement must contain “medical evidence” such as lab test results (no time limit for prior infection is currently included in Florida law). The form provided by the State of Florida asks for the date of the test, but does not impose any time limit on the age of the test.
- A test exemption statement must include a commitment to comply with “regular testing” (the form provided by the State of Florida states that testing cannot be more frequent than once a week). The required tests must be free of charge for the employee. There is no reference in Florida law as to whether the employee’s time spent getting tested should be paid.
- A personal protective equipment exemption statement must include the employee’s commitment to comply with the employer’s PPE requirements when in the presence of other persons. Again, Florida law does not define PPE.
Florida law provides that existing “employer COVID-19 vaccination warrants” are “invalid until the Department of Health files its emergency rules or 15 days after the effective date of this. law, whichever comes first. “
As noted above, Florida’s new law has several loopholes and missing definitions. However, Florida law directs the Florida Department of Health to promulgate regulations that will likely address some of these loopholes. The Florida Department of Health is required to issue regulations regarding frequency of testing, eligible testing methods, what evidence will be considered “competent” for the purposes of the immunity exemption declaration, and any relevant circumstances. to be taken into account regarding the anticipated pregnancy of an employee.
Florida’s new law is unclear whether an employer can also require regular testing / masking of employees who qualify for any of the five individual exemptions.
Florida law Is prohibit employers from implementing a policy that prevents employees from getting the COVID-19 vaccine.
Florida’s new law makes not create a private right of action for employees to sue their employers.
Rather, Florida Statute § 381.00317 (3) provides a procedure for an employee to file a complaint with the Florida Department of Legal Affairs alleging that an exemption was not offered or was improperly applied or denied.
The employer can remedy the non-compliance, but the new Florida law does not explain how the healing process would work.
If the Florida Attorney General finds that an employee was terminated because the employer broke the law, the Florida Attorney General must impose an administrative fine not exceeding $ 10,000 per violation for employers with less than 100 employees and not exceeding $ 50,000 per violation for employers with 100 or more employees.
The amount of the fine will depend on several factors set out in the law, including:
- If the employer knowingly and willfully broke the law.
- Whether the employer has shown good faith in trying to comply with the law.
- Whether the employer has taken steps to correct the violation.
- If the employer has already been fined for violating the law.
- Any other mitigating or aggravating factor required by the fairness or regularity of the proceedings.
An employer can also avoid a fine by reinstating an employee who was allegedly dismissed in violation of the law with back pay before issuing a final order. Florida’s new law does not appear to be retroactive. Consequently, it does not appear that employees made redundant before the date of entry into force of this law, November 18, 2021, can avail themselves of the complaints procedure.
Florida law § 112.0441 prohibits Florida government entities from requiring employees to be vaccinated as a condition of employment.
Conflict / preemption with federal vaccine mandates
Florida’s new law creates significant risks for state businesses with 100 or more employees. These companies could soon face heavy federal penalties if they fail to comply with the OSHA ETS requiring that employees be vaccinated or tested regularly. Employers in the health sector, such as hospitals which are covered by a stricter CMS mandate, are also vulnerable.
If these employers comply with federal mandates, they will likely face penalties for violating Florida’s new law, as some of the state’s specific exemptions are not allowed under federal ETS / CMS rules.
In the ETS, OSHA explicitly states that the ETS takes precedence over state laws such as the New Florida Law. However, a panel of the United States Court of Appeals for the Fifth Circuit temporarily suspended the ETS. The multiple consolidated court challenges regarding the ETS are now pending in the United States Court of Appeals for the Sixth Circuit. In all likelihood, the issue of preemption will need to be argued to bring clarity to employers covered by both the ETS and the new Florida law.
The new Florida law also conflicts with the vaccination requirement in the CMS Interim Final Rule and conflicts with the federal contractor mandate of Executive Order 14042. Legal challenges to these federal requirements are pending. courses in Florida and other states. However, as of yet, no court has ordered the suspension of CMS Rule or Executive Order 14042.
What does the new Florida law mean for Florida employers?
To date, Florida employers not covered by CMS Interim Final Rule or Executive Order 14042 only have this new Florida law to follow (since ETS rules are suspended by court order and that OSHA itself has suspended its implementation and enforcement). These employers may want to consider suspending any vaccine mandates in place while continuing to monitor legal developments. Best practices for Florida employers are to develop policies, processes, and models to comply with the new Florida law. And, as noted above, there are parts of Florida law that need to be fleshed out by the Florida Department of Health.
Florida employers covered by CMS Interim Final Rule or Executive Order 14042 are caught between federal and state law. These employers will need to balance the risk of losing business with the federal government or the ability to participate in Medicare / Medicaid programs with a violation of the new Florida law and potential penalties from the state of Florida.
Additionally, Florida employers who have programs in place to voluntarily follow ETS rules could now face employee complaints and possible investigations and administrative fines from the Florida Attorney General. if they violate the limitations of the new Florida law on employee vaccination mandates. While employers wait for the courts to resolve this conflict between federal and state laws, employers covered by federal immunization measures should undertake their own risk analysis and possibly seek legal advice.