COVID-19 Update: Masks, Vaccines, and COBRA Guidance

The past few weeks have seen a flurry of activity at both the federal and state level relating to COVID-19.  Most recently, the Centers for Disease Control and Prevention (“CDC”) issued updated guidance concerning the use of masks for fully vaccinated individuals.  This article will provide you a brief overview of these latest developments, but as always, we encourage you to seek legal guidance for how these developments may impact your specific business.

CDC’s UPDATED GUIDANCE ON MASKS

On May 16, 2021, the CDC issued updated guidance for fully vaccinated individuals, which included guidance that fully vaccinated individuals can resume activities “without wearing a mask or staying 6 feet apart, except where required by federal, state, local, tribal, or territorial laws, rules, and regulations, including local business and workplace guidance”.  Fully vaccinated individuals still need to wear masks “on planes, buses, trains, and other forms of public transportation traveling into, within, or out of the United States, and in U.S. transportation hubs such as airports and stations”.  Moreover, even if an individual has been fully vaccinated, they may still need to wear a mask if they are immunocompromised or suffer from a serious health condition. 

At this time, private businesses in Florida may legally mandate that both their employees and customers wear masks, including cloth face coverings.  In deciding whether to continue to have fully vaccinated employees wear masks, employers should consider factors, such as the type of business, the number of employees who have been fully vaccinated, and the level of in-person customer interaction.  In addition, employers should be mindful that reasonable accommodations to mask policies could be required for the benefit of employees that are immunocompromised or have other underlying health conditions even if they are fully vaccinated. 

Government entities and public employers in Florida will need to engage in a more careful analysis of masking and vaccination policies based upon Executive Order Number 21-102 and the newly enacted § 381.00316, Florida Statutes.

FLORIDA ENACTS COVID-RELATED LAWS

On March 29, 2021, Governor Ron DeSantis signed into law S.B. 72, “Civil Liability for Damages Relating to COVID-19”.  S.B. 72 set forth a series of liability protections for certain COVID-19 related claims.  For example, in a civil action based upon a COVID-19 related claim, the plaintiff must allege specific facts in their complaint and must submit an affidavit signed by a physician stating that the plaintiff’s COVID-19 related damages, injuries or death occurred as a result of a defendant’s acts or omissions.  In addition, a defendant may avoid liability if the court determines that the defendant “made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued”.  S.B. 72 also provides specific requirements that must be met for a plaintiff to bring a lawsuit against a healthcare provider. 

While this law does not affect an employer’s obligations or legal requirements arising under federal laws, such as the Emergency Paid Sick Leave Act or OSHA, it may impact an employee’s ability to bring claims against an employer for negligence or other similar claims relating to a COVID-19 infection or illness.  It is anticipated that S.B. 72 will be heavily litigated and its enforceability will be tested in the courts.

Through Executive Orders, Governor DeSantis has also recently suspended all remaining local government mandates and restrictions based on the COVID-19 State of Emergency (Executive Order Number 21-102) and has prohibited COVID-19 vaccine passports (Executive Order Number 21-81). 

While these Executive Orders do not affect a private business’s ability to make its own determination as to whether to continue to require that customers and/or employees wear face masks, engage in social distancing or implement other CDC guidance, businesses cannot require patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business.  Private businesses, however, can continue to ask COVID-19 screening questions, such as whether an individual has recently been exposed to COVID-19.  Private employers can also continue to require their employees to receive the COVID-19 vaccine in accordance with the December 2020 guidance issued by the Equal Employment Opportunity Commission.    

Finally, on May 3, 2021, Governor DeSantis signed S.B. 2006, an act relating to emergency management, into law with an effective date of July 1, 2021.  This broad reaching bill will most likely be heavily challenged in litigation by local governments and local government entities. With regards to private employers, SB 2006 codifies the Executive Order that prohibits private businesses from requiring “patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery”.  It also allows the Department of Health to impose a fine not to exceed $5,000 per violation.  See § 381.00316, Florida Statutes. 

DEPARTMENT OF LABOR PROVIDES COBRA GUIDANCE

The United States Department of Labor has issued FAQs About COBRA Premium Assistance Under The American Rescue Plan Act of 2021.  The American Rescue Plan Act of 2021 (“ARP”) provides temporary premium assistance for COBRA continuing coverage for eligible individuals through September 30, 2021. Under the ARP, eligible employees are not responsible for payment of their premiums, but rather, the premiums are paid by the employers and reimbursed directly through a COBRA premium assistance credit on their payroll taxes. Employers should also be aware that the ARP requires that COBRA related notices, whether sent through a plan administrator or through the employer, must include certain language concerning premium assistance. A model notice can be found at https://www.dol.gov/sites/dolgov/files/ebsa/laws-and-regulations/laws/cobra/premium-subsidy/summary-of-provisions.pdf

Joan M. Vecchioli is a partner in the Clearwater office and is Board Certified in Labor and Employment Law by the Florida Bar.
Colleen M. Flynn is a partner in the Clearwater office whose practice focuses on Labor and Employment Law.
Rachael L. Wood is a senior associate in the Clearwater office whose practice focuses on Labor and Employment Law.

THIS ARTICLE IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  LEGAL ADVICE CANNOT BE GIVEN WITHOUT INFORMATION ABOUT YOUR SPECIFIC SITUATION.