On November 18, 2021, Governor Ron DeSantis signed into law measures that immediately prohibit workplace COVID-19 vaccine mandates for private and public employers and begin the process for Florida establishing a state occupational safety and health plan.
Florida employers now have additional considerations besides following the status of the federal Occupational Safety and Health Administration (OSHA) emergency temporary standard (ETS), the Centers for Medicare & Medicaid Services (CMS) vaccine mandate, and the federal contractor vaccine mandate in Executive Order 14042. Below is a summary of the new requirements and related legal issues.
Private Employer Vaccine Mandates and Individual Exemptions
Section 381.00317, Florida Statutes, prohibits private employers from implementing a COVID-19 vaccination mandate for employees without providing at least five individual exemptions. The mandate protection covers “any full-time, part-time, or contract employee.” The statute does not define “employee” or “contract employee” in its text. Presumably, “contract employee” means an independent contractor, but that is not entirely clear. The statute also does not reference applicants.
Covered reasons for exemptions include:
- Medical reasons;
- Religious reasons;
- Immunity” based on prior COVID-19 infection;
- Agreeing to be tested regularly; and
- Agreeing to use personal protective equipment (PPE).
To qualify for an exemption, employees must submit an exemption statement, which varies depending on the category of exemption sought.
A medical exemption exemption statement must be completed by a health care professional as defined in the bill. A religious exemption statement must mention the employee’s sincerely held religious belief. An immunity exemption statement must contain “medical evidence” such as laboratory test results (no time limit on the prior infection is indicated). A testing exemption statement must include a commitment to comply with “regular testing” (no period is specified) on a complimentary basis (no reference is made to the compensability of the time incurred in getting tested). A PPE exemption statement must include the employee’s agreement to comply with the employer’s PPE requirements.
The law directs the state Department of Health to devise requirements for the frequency of testing frequency, the eligible methods of testing, what evidence will be considered “competent” for purposes of the immunity exemption statement, any relevant circumstances to be considered regarding an employee’s anticipated pregnancy, and the forms for the five exemption statements.
The law prohibits employers from implementing a policy that prevents employees from being vaccinated.
The law does not create a private right of action for employees to sue their employers. Instead, section 381.00317(3) permits an employee to file a complaint with the Department of Legal Affairs (the attorney general’s office) alleging an exemption was not offered or was improperly applied or denied. The employer can cure the noncompliance, but the law does not explain how that process would work.
If the attorney general finds an employee was discharged (actually or constructively) because the employer violated the law, the attorney general must impose an administrative fine not to exceed $10,000 per violation for employers with fewer than 100 employees and $50,000 per violation for employers with 100 or more employees.
The fine will depend on several factors set forth in the statute, including:
- Whether the employer knowingly and willfully violated [the law];
- Whether the employer has shown good faith in attempting to comply with [the law];
- Whether the employer has taken action to correct the violation;
- Whether the employer has previously been assessed a fine for violating [the law]; [and]
- Any other mitigating or aggravating factor that fairness or due process requires.
An employer may avoid a fine by reinstating the employee with back pay before issuance of a final order.
Section 112.0441 prohibits government entities from requiring employees to be vaccinated as a condition of employment. These provisions are intended to clarify prior legislation that did not directly address government employees when prohibiting vaccine “passports.”
Preemption by Federal Measures?
Section 381.00317 sets up a conflict with OSHA’s ETS that a panel of the U.S. Court of Appeals for the Fifth Circuit has temporarily stayed. The consolidated challenges are now pending before the U.S. Court of Appeals for the Sixth Circuit following a random selection of that court by the Judicial Panel on Multidistrict Litigation on November 16, 2021. In the ETS, OSHA explicitly states that the ETS preempts state laws like this one. Florida disagrees. In all likelihood, that issue will be litigated.
The new Florida statute also conflicts with the new vaccination requirement that the CMS promulgated in addition to Executive Order 14042’s federal contractor mandate. There are pending legal challenges to those federal measures underway in Florida and elsewhere, but as of today, no court has ordered a stay of either the CMS rule or Executive Order 14042.
What Does This Mean for Florida Employers?
As of today, Florida employers not covered by the CMS or Executive Order 14042 have only this new Florida law with which to comply. The ETS by federal OSHA is stayed by court order, and OSHA itself has suspended its implementation and enforcement. Those Florida employers face employee complaints and possible investigation and administrative fines by the state’s attorney general if they violate the new law’s limitations on vaccine mandates for employees. For now, those employers may want to consider suspending any vaccine mandates in place while continuing to monitor legal developments, particularly with the ETS. They may also want to develop policies, processes, and templates to comply with the new law.
Compliance with the new Florida can be accomplished one of two ways: (1) do not implement a vaccine mandate for employees; or (2) implement a policy requiring employee vaccinations that provides the required individual exemptions and be prepared to establish a robust process for managing and evaluating those requests.
Florida employers covered by the CMS or Executive Order 14042 are caught between federal and state law. While employers wait for courts to resolve this conflict, employers covered by those federal measures must balance the risk of losing business with the federal government or the ability to participate in Medicare / Medicaid programs, relying on the federal government’s stated intent to preempt state law, with violating the state law and facing penalties under that statute.
Florida State Plan for Occupational Safety and Health
Through House Bill 5B, Florida now has taken its first step toward establishing a state occupational safety and health plan and asserting state jurisdiction over these issues in Florida workplaces, both private and public. This process will likely take several years. Moreover, the new process 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, 22 other states and jurisdictions have their own State Plans.
Ogletree Deakins will continue to monitor and report on developments regarding 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.
Florida employers interested in learning more about the COVID-19 vaccination considerations they are likely to have in light of the the Sunshine State’s new measures may want to attend Ogletree Deakins’ webinar, “New Florida Laws Restrict Workplace Vaccine Mandates and Begin State OSH Plan Process,” which will take place on Tuesday, November 23, 2021, from 2:00 p.m. to 3:00 p.m. EST. Register here.