Florida Special Session to Address COVID-19 Vaccine Mandates and State OSH Plan

On November 15, 2021, the Florida Legislature will convene a five-day special session under the proclamation issued on October 29, 2021, by Governor Ron DeSantis for the “Keep Florida Free” joint legislative agenda.

With the Republican majorities in both state legislative chambers and Governor DeSantis in the state house, employers should expect these measures to become law by the end of this week.

The bill that would prohibit private employers from implementing vaccine mandates sets up a direct legal conflict with the U.S. Occupational Safety and Health Administration’s (OSHA) emergency temporary standard (ETS) that  a panel of the U.S. Court of Appeals for the Fifth Circuit has temporarily stayed by an order. The federal circuit court that ultimately hears the pending and soon-to-be consolidated petitions for review will need to address whether the ETS preempts this new Florida bill if it becomes law. OSHA claims it does; Florida disagrees. The Supreme Court of the United States will ultimately decide.

Private Employer Vaccine Mandates and Individual Exemptions

Senate Bill (SB) 2-B (and its companion House Bill (HB) 2-B) would be codified at section 381.00317, Florida Statutes, and will prohibit private employers from implementing a COVID-19 vaccination mandate for employees without providing at least five individual exemptions. The mandate protection would cover “any full-time, part-time, or contract employee.” The exemptions include:

1. Medical reasons, as determined by a physician, advanced practice registered nurse, or physician assistant, including pregnancy or expectation of pregnancy;
2. Religious reasons, based on a sincerely held belief;
3. Immunity based on prior COVID-19 infection, as documented by a lab test;
4. Agreeing to comply with regular testing at no cost to the employee; and
5. Agreeing to use employer-provided personal protective equipment (PPE).

Each exemption requires an employee to submit an exemption statement as follows.

For medical reason exemptions, employees must provide an exemption statement completed by a health care professional as defined in the bill. The religious reason exemption statement must indicate that the employee declines vaccination because of a sincerely held religious belief. The exemption statement would not have to be submitted by a pastor or other religious representative. The immunity exemption statement must contain “competent medical evidence,” such as a laboratory test results. The testing exemption statement must contain the employee’s commitment to comply with “regular testing” (no period is specified) at no cost to the employee. The PPE exemption statement must indicate the employee agrees to comply with the employer’s reasonable written requirements of using PPE when in the presence of other employees or persons.

The legislation directs the state Department of Health to specify requirements for testing frequency and methods of testing, competent medical evidence for immunity, circumstances to be considered with regard to an anticipated pregnancy, and exemption forms for the five exemption statements.

The law, if passed, would also prohibit employers from implementing a policy that prohibits an employee from receiving a vaccination.

Enforcement

If an employee is improperly denied an exemption, he or she may file a complaint with the state attorney general. Fines of up to $50,000 (depending on the employer’s size) would apply to employers that improperly discharge an employee. Alternatively, the employer may reinstate the discharged employee with back pay to avoid any fines. Employees would not have a private right of action against their employer.

Government Employees

The measure would prohibit government entities, including educational institutions, from requiring a COVID-19 vaccination as a condition of employment. These provisions regarding public employers are intended essentially to be a clarification of prior legislation that did not directly address government employees when prohibiting vaccine “passports.”

The public employee provisions of the bill do not provide the same individual exemptions. Rather, they ban public employers from mandating vaccines with no exemptions. If a public employee’s rights are violated, the state Department of Health may fine the public employer, per violation, an amount not to exceed $5,000.

Protection of Employees’ Private Health Care and Religious Information

SB 4-B and HB 3-B would protect workers from undue retaliation by creating a public records exemption for certain information. The covered information includes personal medical information or information regarding an employee’s religious beliefs that are contained in files created during an investigation of an employer that refuses to provide individual exemptions or discharges an employee based on COVID-19 vaccination status.

Florida State Plan for Occupational Safety and Health

SB 6-B and HB 5-B take the first step toward developing a proposal to withdraw from federal OSHA and assert state jurisdiction over occupational safety and health issues in Florida workplaces. The process will take several years and will allow the state to set up a State Plan that could approach safety issues differently than federal OSHA, as long as its measures are “at least as effective” as the federal approach. Under section 18 of the Occupational Safety and Health Act, other states currently have their own State Plans.

Prohibiting the State’s Health Officer to Mandate Vaccinations

Although not directly related to workplace legal issues, SB 8-B and HB 7-B repeal provisions of existing law, which have never been used, that could allow the state health officer to require that Florida residents receive the vaccine.

Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.