The Ever-Changing Nature Of The Law: Florida’s New Covid-19 Legislation
On November 18, 2021, Governor Ron DeSantis signed into law legislation related to COVID-19 vaccine mandates by employers. This legislation was passed during a special session of the Florida Legislature called by Governor DeSantis in response to federal vaccine mandates. As the federal mandate is embroiled in legal battles throughout the country, the legal landscape remains very much unsettled. In Florida, this new legislation took effect immediately, and it is critical for employees and employers to stay informed about these changes.
Section 381.00317(1), Florida Statutes (2021), provides: “A private employer may not impose 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 on (1) the basis of medical reasons, including, but not limited to, pregnancy or anticipated pregnancy; (2) religious reasons; (3) COVID-19 immunity; (4) periodic testing; and (5) the use of employer-provided personal protective equipment.” (Emphasis and numbering added). Employers are to use forms created by the Department of Health. Those forms can be found on the Department of Health’s website at http://www.floridahealth.gov/newsroom/2021/11/20211118-florida-department-health-covid19-vaccination-exemption-forms.pr.html (last visited Dec. 20, 2021). The takeaway from the above is that employers can implement vaccine mandates as long as they offer the stated exemptions, including allowing employees to opt to undergo testing paid for by the employer or using personal protective equipment (“PPE”). Employers can also continue to protect its workforce through the use of PPE and testing that is separate from a vaccine mandate.
In order to claim a medical exemption, an employee “must present to the employer an exemption statement, dated and signed by a physician or a physician assistant . . . who has examined the employee.” § 381.00317(1)(a), Fla. Stat. (2021). The statement must provide that in the opinion of the medical professional, “COVID-19 vaccination is not in the best medical interest of the employee.” Id. This exemption is similar to an exemption under the Americans with Disabilities Act (“ADA”).
Regarding the religious exemption, an “employee must present to the employer an exemption statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief.” § 381.00317(1)(b), Fla.
Stat. (2021). The form provided by the Department of Health makes it clear that an “employer shall not inquire into the veracity (i.e., truthfulness) of the employee’s religious beliefs.” Notably, the employee is not required to provide documentation from a religious leader.
In order to claim the exemption based on immunity, “the employee must present to the employer 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.” § 381.00317(1)(c), Fla. Stat. (2021). The employee must attach a copy of the test results to the form submitted to the employer.
Regarding the testing exemption, “the employee must present to the employer an exemption statement indicating that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.” § 381.00317(1)(d), Fla. Stat. (2021) (emphasis added). The statute does not provide an exception if the testing cost would create an undue hardship on the employer.
In order to claim the PPE exemption, “the employee must present to the employer an exemption statement indicating that the employee agrees to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.” § 381.00317(1)(e), Fla. Stat. (2021) (emphasis added). The statute does not provide a definition for PPE.
The Florida Legislature made it clear that “[i]f an employer receives a completed exemption statement . . ., the employer must allow the employee to opt out of the employer’s COVID-19 vaccine mandate.” § 381.00317(2), Fla. Stat. (2021).
The Florida Legislature charged the Department of Legal Affairs with enforcement of these provisions. Any employee may file a complaint with the Department “alleging that an exemption has not been offered or has been improperly applied or denied in violation of this section.” § 381.00317(3), Fla. Stat. (2021). If the investigation uncovers a violation, the employer must be notified and the employer must be given the opportunity to cure the noncompliance. Id.
If an employer terminates an employee for failing to comply with the vaccine mandate, the employee can file a complaint with the Department. Id. The Florida Legislature noted that “[t]ermination includes the functional equivalent of termination,” which would include forcing an employee to resign. Id. If the terminated employee files a complaint with the Department and the investigation determines that an employee was improperly terminated in violation of the statute, the Attorney General is required to impose an administrative fine not to exceed $10,000 per violation for an employer with fewer than 100 employees and $50,000 per violation for employers with 100 or more employees. Id. The Attorney General may not impose the fine if the employer reinstates the employee with back pay to the date the complaint was received prior to the Department issuing a final order. Section 381.00317 does not provide for individuals to sue their employers.
The Florida Legislature explicitly notes that “[a]n employer may not impose a policy that prohibits an employee from choosing to receive a COVID-19 vaccination.” § 381.00317(7), Fla. Stat. (2021). Finally, this legislation expires June 1, 2023. § 381.00317(8), Fla. Stat. (2021).
In addition to employer vaccine mandates, the Florida Legislature also prohibited “any business operating in this state” from requiring “patrons or customers to provide any documentation certifying COVID-19 vaccination or postinfection recovery to gain access to, entry upon, or service from the business operations in this state.” § 381.00316(1), Fla. Stat. (2021). The legislation “does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or government-issued guidance to protect public health.” Id. There are similar restrictions on governmental entities and educational institutions. § 381.00316(2)-(3), Fla. Stat. (2021). There are exceptions for health care providers, certain behavioral health providers, and clinicians. § 381.00316(5), Fla. Stat. (2021). The Department of Health is permitted to impose a fine of up to $5,000 per violation. § 381.00316(4), Fla. Stat. (2021).
The federal vaccine mandates continue to work their way through the court system. To the extent that Florida law directly conflicts with the federal mandates that remain in place, the federal law would likely control. This will, of course, depend on if the federal mandates survive. This is an ever-changing area of the law, and there will likely be legal challenges to this legislation as well. As these developments occur, we will update this blog.
If you have any questions or concerns regarding this topic, or any topic related to labor and employment law, please contact us.