Last Thursday, Gov. Ron DeSantis (R) signed sweeping legislation designed to protect private and public sector employees from losing their jobs due to COVID-19 vaccination mandates, as well as to protect the rights of parents, emancipated minor students, and students over the age of 18 from being forced to obtain COVID vaccinations, or to wear masks, face shields, or other forms of personal protective equipment against their will.
This legislation went into effect immediately and will remain in effect until it expires on June 1, 2023.
Private sector employers
Codified as Section 381.00317 of the Florida Statutes, this new legislation prohibits private employers from requiring that any full-time, part-time, or contract employee be vaccinated. Employers who impose vaccine mandates must let employees opt out of vaccination for any of the following reasons: (1) medical reasons, which specifically include pregnancy or anticipated pregnancy; (2) religious reasons, (3) “natural immunity” to COVID; (4) submission to periodic testing for COVID; or (5) use of employer-provided PPE.
An employee seeking an exemption based on medical grounds will need to present the employer with an “exemption statement” signed by a physician, physician’s assistant, or advanced practice registered nurse, which says that vaccination would not be in the best medical interest of the employee. With respect to “anticipated pregnancy,” the Florida Department of Health is supposed to adopt rules, including a maximum time frame in which an employee can claim an exemption on that basis. For now no such rules exist.
An employee seeking exemption for religious reasons need only present an exemption statement indicating that the employee declines to be vaccinated because of his or her “sincerely held religious belief.” Notably, the law does not require the employee to articulate what the belief is, or otherwise provide any supporting proof of adherence to that belief.
An employee seeking exemption based on a COVID-19 immunity must provide an exemption statement “demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” However, the law does not elaborate on what constitutes “competent medical evidence”; instead, it merely states that the Department of Health will adopt an applicable standard.
To be exempt based on periodic COVID-19 testing, the employee must provide the employer with an exemption statement specifying that the employee will comply with “regular [COVID] testing,” but it does not say what “regular testing” means. The law provides that the cost of testing must be borne by the employer and not the employee.
Finally, an employee can provide the employer with a statement of exemption based on compliance with the employer’s “reasonable written requirement to use employer-provided PPE when in the presence of other employees or other persons.” (Emphasis added.) The law does not specify what constitutes a “reasonable written requirement.”
In addition, the law prohibits private employers from imposing policies that require employees to be vaccinated against COVID.
The legislation requires the state Department of Health to adopt emergency rules within 15 days of the legislation’s signing. Employers’ vaccination mandates are deemed to be invalid until the Department of Health “files its emergency rules, or within 15 days after the effective date of this act, whichever occurs first.”
The subject matter to be addressed in the rules includes the following: (1) requirements for the frequency and method of COVID testing; (2) standards for determining competent medical evidence of an immunity to COVID; and (3) what an “anticipated pregnancy” will be for the purposes of a medical exemption. The Department of Health has already prepared forms for each of the five exemptions. The law will require employers to use the Department of Health forms, or substantially similar ones. If an employer receives a completed exemption statement from an employee, it must allow that employee to opt out of vaccination.
If an employer fails to offer an employee an exemption as specified in the act, or otherwise improperly applies, or denies, an employee’s exemption, then the employee can file a complaint with the Florida Department of Legal Affairs, which will conduct an investigation. If the FDLA finds that an exemption was not offered, was improperly applied, or was denied, it will allow the employer to cure its noncompliance. The law also prohibits employers from terminating, or taking other adverse action that is functionally equivalent to termination, against employees based on non-compliance with the employers’ vaccination mandates. The legislation provides no explanation regarding which types of other adverse employment action will be considered functionally equivalent to a termination.
The FDLA will investigate the complaint of any employee who claims to have been terminated because of an employer’s vaccination mandate. If, after investigation, the Florida Attorney General concludes that an employee was improperly terminated, then she must impose an administrative fine. Employers who reinstate their terminated employees with back pay will not be subject to fines.
The amount of the fine will depend on a variety of factors, including whether (1) the employer’s violation was knowing or willful, (2) the employer attempted in good faith to comply with the law, (3) the employer took action to correct its violation, and (4) the employer’s previous violations of this law. Other mitigating or aggravating factors can be considered, as well as the size of the employer. Employers with fewer than 100 employees can face fines of up to $10,000 per violation, whereas employers with 100 employees or more can be fined up to $50,000 per violation. Once collected, those fines are deposited in the state’s General Revenue Fund.
If the FDLA determines that an employee was terminated for refusing to comply with the employer’s vaccination mandate, and that the employer did not offer any of the exemptions provided by this new law, then the employee’s refusal to comply cannot be deemed “misconduct” in the event the employee seeks reemployment assistance under Chapter 443 of the Florida Statutes.
Public sector employers
The public sector provisions (scroll to page 12 at the link) are codified as Section 112.0441 of the Florida Statutes. Public sector employers, including public educational institutions and governmental entities, are prohibited from imposing COVID-19 vaccination mandates on their full-time, part-time and contract employees. Any ordinance, rule, or policy imposing such a mandate will be deemed null and void. If an educational institution or governmental entity imposes a vaccination mandate on its employees, it will be in violation of the law and may be subject to a fine from the state Department of Health of no more than $5,000 per violation. Similar to its private sector counterpart, this new legislation for public sector employers indicates that employees who have been terminated for refusing to comply with a public employer’s COVID-19 vaccination mandate may seek to recover reemployment assistance and that the employee’s refusal to comply with that mandate will not constitute “misconduct.”
The legislation also amended Section 1002.20 of the Florida Statutes to prohibit a district school board, a district school superintendent, an elected or appointed local official, or any school district employee from prohibiting another employee from returning to work, or otherwise subjecting that returning employee to restrictions or disparate treatment, based on an exposure to COVID-19, as long as the employee is asymptomatic and has not tested positive.
Butting heads with the feds
The Florida legislation contains provisions that appear to be squarely at odds with the latest COVID-related rules issued by the federal government, specifically,
President Biden’s Executive Order No. 14042, which required that certain federal contractors and subcontractors require “covered contract employees” to be vaccinated.
An emergency regulation issued by the Centers for Medicare and Medicaid Services, which requires health care facilities that receive Medicare and Medicaid funds to require employees, and some non-employees, to be vaccinated.
The Emergency Temporary Standard issued by the Occupational Safety and Health Administration, which required that most private employers with 100 or more employees must require their employees to either be vaccinated or submit to weekly COVID-19 testing. (NOTE: The ETS has been stayed by a court, and OSHA has said that it will not try to enforce the ETS until the litigation is resolved.)
Although the federal contractor and CMS rules have also been challenged in the courts, at this time they remain in effect.
Typically, the Supremacy Clause of the United States Constitution dictates that when federal laws and state laws conflict, federal law takes precedence and is controlling. Both Executive Order 14042 and the CMS rule state that they supersede any conflicting state or local law. We hope that if an employer is found to be in violation of Florida law because it was complying with its obligations under E.O. 14042 or the CMS rule, compliance with the federal requirement would be a “mitigating or aggravating factor” to be considered by the state in determining whether to assess a fine, if not a complete defense. We expect to get further clarity on this issue and will provide an update when we do.
In conjunction with the anti-mandate legislation, Florida also passed a complementary law that will protect the confidentiality of investigations into suspected violations. This new law, Florida Statute §381.00318 (HB 3B/SB 4B), provides as follows:
FDLA files and records relating to an investigation of an alleged violation are exempt from disclosure as a public record until the investigation is complete and ceases to be active.
Certain information from the investigation will always be exempt from disclosure, even after the investigation concludes. This includes medical information about an employee and information regarding an employee’s religious beliefs.
This confidentiality law will be automatically repealed on October 2, 2023.
Finally, the legislature also passed two new laws purportedly aimed at preventing vaccine mandates in the future. One measure will create a state OSHA plan, but federal OSHA must approve the state plan, and the approval process is onerous. (In addition, state OSHA plans must be “at least as effective” as their federal counterpart. For example, if the vaccine ETS survives its court challenges, state OSHAs will be required to impose similar vaccine mandates on private sector employers.) The other legislation amends a law that granted the state Surgeon General the power to mandate vaccines in the event of a public health emergency. As amended, the law no longer provides the Surgeon General with authority to mandate vaccines.
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