Florida’s new law violates federal COVID-19 vaccine mandates, leaving some employers in a tough spot | Fox Rothschild LLP
On November 18, 2021, Florida Governor Ron DeSantis enacted a new state law that immediately banned COVID-19 vaccine mandates for employees of private and public employers.
Florida employers now need to figure out how to comply Florida’s New Law while also complying, where applicable, with the Federal Ministry of Occupational Safety and Health Administration (OSHA) Emergency Temporary Standards (ETS) COVID-19 Vaccine Mandate, the Centers for Medicare & Medicaid Services’ (CMS) Healthcare staff Vaccination Interim Final rule and the federal contractor vaccine mandate in Federal Executive Order 14042.
Vaccine Mandates and Individual Waivers for Florida Private Employers
Florida Statute § 381,00317 prohibits private employers from imposing a COVID-19 vaccination mandate on employees unless the private employers also allow five different individual employee exemptions. The exemption forms made by the state of Florida have been posted here.
The Florida law ban extends to “any full-time, part-time, or contract employee.” The Florida statute does not define “employee” or “contract worker” in its text. A “contract worker” is believed to mean an independent contractor, but the law is unclear. Florida law also doesn’t refer to employee job applicants, so at this point it appears that mandating COVID-19 vaccines for job applicants will continue to be allowed.
The five individual exemptions set forth in the new Florida law are as follows:
- Medical reasons.
- Religious reasons.
- “immunity” based on previous COVID-19 infection.
- Agree to be tested regularly.
- Consent to the use of personal protective equipment (PPE).
To qualify for an individual exemption, Florida employees must submit a statement of exemption, which varies depending on the category of exemption applied for.
- A medical waiver statement must be completed by a healthcare professional as defined by law. While Florida law does not provide a detailed explanation, the form provided by the state of Florida is very bare-bones and simply requires the health care provider to check a box and complete the form. Florida law also states that pregnancy or “expected pregnancy” (which appears to have no limitation on timing at this time) qualifies as a medical exemption.
- A religious exemption statement must state the employee’s genuine religious beliefs. Again, Florida law does not provide details regarding this exemption, but the form provided by the State of Florida again requires the employee to make a statement stating the employee’s sincere religious belief (including moral or ethical belief). mention. The form specifically forbids the employer to challenge the truth of the employee’s belief.
- A waiver of immunity must include “medical evidence,” such as lab test results (currently, there is no time limit for prior infection in Florida law). The state of Florida form asks for the test date, but does not impose a time limit on how old the test can be.
- A testing waiver statement must include a commitment to comply with “regular testing” (the form provided by the state of Florida states that testing should be no more than weekly). The required examination may be free of charge for the employee. There is no reference in Florida law to whether the time taken by the employee to get tested should be compensated.
- A PPE exemption statement must contain the employee’s agreement to comply with the employer’s PPE requirements when around others. Again, Florida law does not define PPE.
The Florida law states that existing “employer COVID-19 vaccination mandates” “will be invalid until the Department of Health files its emergency regulations or 15 days after the effective date of this law, whichever occurs first.”
As mentioned above, the new Florida law contains several gaps and missing definitions. However, Florida law directs the Florida Department of Health to issue regulations that are likely to fill some of those gaps. The Florida Department of Health is required to issue regulations regarding the frequency of testing, the appropriate testing methods, which evidence will be deemed “competent” for the purposes of the immunity waiver statement, and any relevant circumstances to be considered with respect to until an employee’s expected pregnancy.
Florida’s new law isn’t clear whether an employer can also require regular testing/masking of employees who qualify for one of five individual exemptions.
Florida law is doing prohibit employers from pursuing policies that prevent employees from being vaccinated against COVID-19.
Florida’s new law does not creating a private right of action for employees to sue their employers.
Florida Statute § 381.00317(3) instead provides a procedure for an employee to file a complaint with the Florida Department of Legal Affairs alleging that an exemption was not offered or was incorrectly applied or denied.
The employer can rectify the non-compliance, but the new Florida law does not explain how the healing process would work.
If the Florida Attorney General determines that an employee has been fired because the employer has broken the law, the Florida Attorney General will: should impose an administrative fine of up to $10,000 per violation for employers with fewer than 100 employees and up to $50,000 per violation for employers with 100 or more employees.
The amount of the fine depends on several factors laid down by law, including:
- Whether the employer knowingly and intentionally broke the law.
- Whether the employer has shown good faith in its efforts to comply with the law.
- Whether the employer has taken action to correct the violation.
- Whether the employer has previously been fined for breaking the law.
- Any other mitigating or aggravating factor that requires fairness or due process.
An employer can also avoid a fine by rehiring the employee who was allegedly fired in violation of the law with back wages before issuing a final injunction. The new Florida law does not appear to be retroactive. It therefore does not appear that employees who have been terminated before the effective date of this law, 18 November 2021, will be able to use the complaints procedure.
Florida statute § 112.0441 prohibits government agencies in Florida from requiring workers to be vaccinated as a condition of employment.
Conflict/preemption with federal vaccine mandates
Florida’s new law creates significant risks for businesses in the state with 100 or more employees. Those companies could soon face heavy federal penalties if they fail to comply with the OSHA ETS that requires employees to be vaccinated or tested regularly. Healthcare employers, such as hospitals under a stricter mandate from the CMS, are equally vulnerable.
If those employers adhere to federal mandates, they will likely be sanctioned for violating the new Florida law, as some of the state-specific exemptions are not allowed under the federal ETS/CMS rules.
In the ETS, OSHA explicitly states that the ETS takes precedence over state laws, such as the new Florida law. However, a panel of the U.S. Court of Appeals for the Fifth Circuit has temporarily suspended the ETS. The multiple consolidated legal challenges related to the ETS are now pending in the United States Court of Appeals for the Sixth Circuit. In all likelihood, the preemption issue will have to be litigated to provide clarity to employers covered by both the ETS and the new Florida law.
Florida’s new law also violates vaccination requirements in the CMS intermediate end line and further conflicts with Executive Order 14042’s Federal Contractor Mandate. There are pending legal challenges to those federal requirements in Florida and other states. However, to date, no court has ordered a suspension of the CMS rule or Executive Order 14042.
What Does the New Florida Law Mean for Florida Employers?
As of today, Florida employers not covered by the CMS Interim Final Rule of Executive Order 14042 must follow only this new Florida law (as the ETS rules are suspended by a court order and OSHA itself has suspended its implementation and enforcement) . Those employers may want to consider suspending all existing vaccine mandates while continuing to monitor legal developments. Best practice for Florida employers is to develop policies, processes, and templates to comply with the new Florida law. And, as mentioned above, parts of the Florida law will be further elaborated by the Florida Department of Health.
Florida employers subject to the CMS Interim Final Rule of Executive Order 14042 are caught between federal and state laws. These employers will have to weigh the risk of losing business with the federal government or the opportunity to participate in Medicare/Medicaid programs against violating the new Florida law and potential penalties from the State of Florida.
In addition, Florida employers who have programs to voluntarily follow ETS rules could now face employee complaints and potentially investigation and administrative fines by the Florida Attorney General if they violate Florida’s new law on employee vaccine mandates. . While employers wait for courts to resolve this conflict between federal and state law, employers subject to federal vaccination measures must conduct their own risk assessment and likely seek legal advice.