Florida Enacts New Law Affecting Mandatory Vaccine Policies in the Workplace
On November 18, 2021, Governor Ron DeSantis signed into law House Bill No. 1-B, which immediately prohibited all governmental entities and educational institutions in the state of Florida from imposing mandatory workplace COVID-19 vaccine policies. While private employers may still require employees to receive a COVID-19 vaccine, they must provide certain exemptions, which far exceed the current requirements of federal anti-discrimination laws that require reasonable accommodations for disabilities or sincerely held religious beliefs.
Specifically, Florida Statute §381.00317 (“Statute”) prohibits any private employer from imposing “a COVID-19 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement”. The five (5) categories of exemptions are as follows:
- Medical Reasons. The Statute does not define “medical reason” or limit the definition to a disability and includes “pregnancy or anticipated pregnancy”. Rather, the Statute states that an employee must present an exemption statement signed by a physician, physician assistant, or advanced practice registered nurse that states that, in their opinion, “COVID-19 vaccination is not in the best medical interest of the employee”. The Emergency Rule entered by the Department of Health to clarify the Statute (“Emergency Rule”) explains that “anticipated pregnancy” means 1) the employee intends to become pregnant and 2) is of childbearing age. The employer must accept the employee’s representation that it is the intent of the employee to become pregnant. The Emergency Rule can be found at Standards and Forms for Exemption from Private Employer Covid-19 Vaccination Mandates.
- Religious Reasons. To claim this exemption, the employee must present to the employer an exemption statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief. The Emergency Rule prohibits an employer from inquiring into the veracity of the employee’s religious beliefs.
- COVID-19 Immunity. An employee may claim this exemption by presenting an exemption statement showing that the employee has immunity to COVID-19, documented by a valid laboratory test, which can be either a diagnostic or antibody test, that has received full approval or emergency use approval by the U.S. Food and Drug Administration (“FDA”).
- Periodic Testing. If an employee agrees to comply with regular testing by presenting an exemption statement, the testing must be provided at no cost to the employee. An employer may test the employee no more than weekly or upon evidence of COVID-19 symptoms using a diagnostic test that has received approval from the FDA. While the Statute and Emergency Rule are silent on at-home tests, an at-home test that is approved by the FDA would likely meet the testing requirement.
- Employer Provided Personal Protective Equipment (“PPE”). As with testing, if an employee agrees to comply with an employer’s reasonable written requirement to use PPE in the presence of other employees or other persons, then the PPE must be provided by the employer. The Statute does not define PPE or differentiate between cloth face coverings and face masks.
The Statute requires the Florida Department of Health to create the exemption statement forms to be used by employees in requesting one of the foregoing exemptions. Employers must use these forms or forms that are substantially similar for employees to submit exemption statements. The exemption forms can be found at the following links: Medical Reasons, Religious Reasons, COVID-19 Immunity, Periodic Testing, and Employer Provided PPE.
If an employer receives a completed exemption statement, the employer must allow the employee to opt out of the employer’s COVID-19 vaccination mandate. This requirement is much broader in scope than the narrow analysis currently used for disability and sincerely held religious beliefs under anti-discrimination laws and leaves employers no room to challenge an asserted exemption to a COVID-19 vaccine policy, provided the employee submits a completed exemption statement form. If an employer improperly applies or denies an exemption offered under the Statute, which results in an employee being terminated or constructively terminated, the employer may be subject to a $10,000.00 fine per violation (for employers with fewer than 100 employees) or a $50,000.00 fine per violation (for employers with 100 or more employees).
It is important to note that the Statute applies to all private employers regardless of size or number of employees. As such, this Statute provides the prevailing law for private employers in Florida with fewer than 100 employees. If a private employer currently has a vaccine policy and is not subject to a federal vaccine mandate, then the employer should immediately revise its vaccine policy to comply with the requirements of the Statute.
Additionally, while OSHA’s COVID-19 Vaccination and Testing Emergency Temporary Standard (“Vaccination ETS”) is stayed by the U.S. Court of Appeals, Florida employers with 100 or more employees must also comply with the Statute. Although we anticipate that the Vaccination ETS will continue to be highly litigated, we cannot predict whether the Vaccination ETS will ultimately be enforced or permanently stayed. If the Vaccination ETS becomes effective, it will preempt Florida law to the extent of any inconsistencies with the Statute. As of right now, however, Florida employers with 100 or more employees should be governed by the Statute.
For Florida employers who are subject to either the Centers for Medicare & Medicaid Services’ (“CMS”) vaccine mandate or Executive Order 14042’s federal contractor vaccine mandate, there are also no clear answers. As of November 30, 2021, a federal court has stayed the CMS vaccine mandate for all states. As with the Vaccination ETS, it is unknown whether the federal government will ultimately be able to enforce the CMS vaccine mandate requirements or whether it will be permanently stayed. While the federal contractor vaccine mandate has been challenged and stayed in other states, there is currently no stay in place in Florida. Thus, Florida employers must balance complying with the requirements of the federal contractor vaccine mandate against running afoul of the Statute and should craft policies to meet the needs of both state and federal law while awaiting legal guidance as to whether and how the federal contractor vaccine mandate will preempt the Statute.
As with the federal vaccine and/or testing mandates, we anticipate that the Statute will be subject to legal challenges, and we will keep you updated on the outcome of those cases. We also know that these are trying times as the laws and requirements for businesses continue to change almost daily. As always, we are here to guide you through that process and wish you a happy and healthy holiday season.
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.