Florida Legislation Bans Businesses from Requiring COVID-19 Vaccine “Passports”

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On May 3, 2021, Florida Governor Ron DeSantis signed into law a bill that would ban any Florida business from mandating that an individual provide proof of COVID-19 vaccination in order to receive services. The Governor approved SB 2006 which enacts section 381.00316-entitled “COVID-19 vaccine documentation” which also applies to all private, non-profit organizations, schools, and state and local government entities in Florida.  This legislation comes on the heels of Governor DeSantis’s Executive Order, which was similar in substance to this legislation. This new law goes in effect on July 1, 2021.

The law dictates that it is impermissible for any business operating in Florida to require patrons or customers to provide documentation certifying COVID-19 vaccination or post-infection recovery “to gain access to, entry upon, or services from” the business. Under the law, a business is defined as including any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship operating in Florida and applies to both domestic and foreign businesses. The law’s definition of business entity also includes charitable organizations and non-profit corporations. It sets forth potentially steep penalties for businesses that are not in compliance with this new law, including a fine of up to $5,000.00 “per violation” imposed by the Florida Department of Health.  The law also directs the Department of Health to adopt rules to enforce this penalty and to otherwise ensure compliance.

Businesses in the healthcare industry may not be affected, as pharmacies, nursing homes, home healthcare services, licensed medical practitioners, medical laboratories, and various other medical service providers are excluded from this law. The law also does nothing to prevent businesses from instituting other COVID-19 screening protocols consistent with “authoritative or controlling government issued guidance” to protect the public health. Under the current state of federal guidelines for COVID-19 screening measures, this would include temperature checks and face mask requirements. It is unclear how the law will apply to these kind of safety measures if federal guidelines change.

Businesses should stay in compliance with the law to avoid potential fines. Because the law states that a fine of up to $5,000.00 can be administered against a business “per violation,” the Department of Health could potentially impose a penalty of up to $5,000.00 for each customer denied access to a business for failing to show proof of COVID-19 vaccination. Therefore, a non-compliant business could face tens of thousands of dollars in administrative fines for failing to comply. Outside of the steep financial penalty under this new law, there are also federal laws that may be implicated in a vaccine documentation requirement such as The Americans with Disabilities Act and Title VII, which would bring their own potential issues for businesses that require proof of COVID-19 vaccination.

The better practices may be to continue COVID-19 screening protocols that are recommended by federal and state guidelines, like temperature checks and face masks. Additionally, businesses can look to incentivize people to get vaccinations by offering perks or discounts to customers who show proof of vaccination. For example, Target stores are offering customers a $5 gift card to people who receive their vaccination at an in-store CVS pharmacy. Implementing screening measures for COVID-19 that do not require proof of vaccination, providing incentives to vaccinated customers, and serving both vaccinated and non-vaccinated customers is the safest way for businesses to avoid legal penalties while still protecting their customers and employees from COVID-19.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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