Following a special legislative session requested by the Governor to address COVID-19 related matters, on November 18, 2021, Governor Ron DeSantis signed legislation aimed at dismantling COVID-19 vaccine mandates imposed by private employers in Florida, among other things. Florida’s legislation follows a minority of other states which are also legislating against or restricting employers’ use of vaccine mandates in the workplace. As of the date of publication, Alabama, Iowa, Montana, Tennessee, and Utah also have state laws that impact employer COVID-19 mandates.
Private Employer Vaccine Mandates & Exemptions
The newly enacted Florida Statute section 381.00317 prohibits private employers of any size from implementing and maintaining COVID-19 vaccine mandates unless they provide the following five exemptions: (1) Medical reasons; (2) Religious reasons; (3) COVID-19 immunity; (4) periodic testing; and (5) use of employer-provided personal protective equipment. This provision covers “any full-time, part-time, or contract employee.” Conversely, the statute also prohibits employers from imposing policies that would prohibit an employee from being vaccinated.
To qualify for one of these exemptions, employees must submit an exemption statement containing specific information based on the exemption sought. Employers may use the forms provided by the Department of Health, or substantially similar forms, for employees to submit exemption statements. Notably, the law appears to require employers to accept and approve any of the five exemption requests without further consideration beyond completeness of the required documentation, and the employer must allow the employee to opt out of an employer’s vaccine mandate.
An exemption statement for a medical reason, including but not limited to pregnancy or anticipated pregnancy, must be signed and dated by a healthcare provider, as defined in the statute, who attests that the vaccine is not in the best medical interest of the employee. An exemption statement for a religious reason must simply indicate that the employee is declining the vaccine based on a sincerely held religious, moral, or ethical belief and does not require any further information from the employee as to the nature of the belief or why that belief prevents the employee from becoming vaccinated. An exemption statement for COVID-19 immunity must include “competent medical evidence” that the employee has immunity and be documented by a valid laboratory test. An exemption statement for periodic testing must indicate that the employee agrees to “regular testing” at no cost to the employee. The law does not address whether the time an employee will spend getting tested is compensable work time. Separate from the testing exemption, employees may submit an exemption statement based upon the agreed use of personal protective equipment to be provided by the employer, which must indicate that the employee agrees to comply with the employer’s reasonable requirements to use PPE when in the presence of others. The law directs the Florida Department of Health to adopt rules, including specifying the requirements for the frequency and methods of testing to be used by employers, establishing standards for “competent medical evidence” that an employee has immunity to COVID-19, and to specify circumstances that are considered an anticipated pregnancy.
Florida statute 381.00317 permits employees to file a complaint with the Department of Legal Affairs if they 1) have not been offered an exemption to the employer’s vaccine mandate, 2) were improperly denied an exemption, or 3) were terminated as a result of not complying with a vaccine mandate.
If the employee has not been terminated, and the Attorney General determines that the employee was not offered an exemption or was improperly denied an exemption, the employer will be given the opportunity to cure this noncompliance.
If the employee was terminated and the Attorney General finds that an employee was terminated in violation of 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 law sets forth the following factors the Attorney General may take into consideration when assessing the appropriate fine:
1. Whether the employer knowingly and willfully violated the law;
2. Whether the employer has shown good faith in attempting to comply with the law;
3. Whether the employer has taken action to correct the violation;
4. Whether the employer has previously been assessed a fine for violation of the law; and
5. Other mitigating or aggravating factors.
Fines cannot be imposed against employers who reinstate a terminated employee prior to issuance of a final order, if the employee is reinstated with back pay to the date of the filing of the complaint.
The law does not create a private cause of action for employees.
The new legislation also opens the door for individuals to potentially qualify for reemployment assistance if they are improperly terminated for noncompliance with a vaccine mandate. Specifically, the legislation provides that if an employee is terminated for non-compliance with a vaccine mandate in violation of the law, the refusal may not be deemed misconduct for purposes of reemployment assistance. The law further provides that reemployment assistance benefits will not be denied on the basis that an employee refused to accept new employment for which they were otherwise eligible on the basis that the new employment requires compliance with a vaccine mandate that is in violation of the law.
Preemption by Federal Law
The Supremacy Clause of the United States Constitution provides that when state and federal law conflict, federal law preempts state law. A conflict occurs where it is impossible to comply with both federal and state law. These recent laws appear to conflict, at least in some respects, with OSHA’s ETS, the CMS mandate, and Executive Order 14042’s federal contractor mandate.
Currently OSHA’s ETS has been temporarily stayed by a federal court and the federal challenges to the ETS have been consolidated and remain pending before the United States Court of Appeals for the Sixth Circuit. Legal challenges have also been filed against the CMS vaccination mandate and Executive Order 14042’s federal contractor mandate, however, as of today, no stays have been entered against these federal measures. The resolution of these challenges will likely resolve allegations of conflicts between federal and state laws on vaccine mandates.
As is the case with much of the COVID-19 experience for employers to date, this Florida legislation leaves a number of practical questions unanswered. Among them:
- Whether employers can require those individuals who submit medical and/or religious exemptions to wear masks and undergo routine COVID-19 testing?
- Whether employers can require those who submit a periodic testing exemption to wear masks in the workplace or if the periodic testing is the exclusive precaution permitted?
- Whether employers can require those who submit a PPE exemption to undergo periodic testing or whether wearing PPE is the exclusive precaution permitted?
- Whether employers can require those who submit a PPE exemption to wear PPE at all times or only when they are within close proximity to others?
- Whether the time to get COVID-19 testing is compensable for those who submit the periodic testing exemption?
- Whether the immunity exemption will require any follow-up testing to reconfirm immunity at a later date?
The rules expected from the Department of Health may help answer these questions and more.
Next Steps for Florida Employers
As of today’s date, employers not subject to either CMS or Executive Order 14042 only need to comply with Florida’s new law regarding vaccine mandates and exemptions. OSHA’s ETS for employers with 100 or more employees has been stayed by a federal court order and OSHA has acknowledged that it will suspend the implementation and enforcement of the ETS pending the federal litigation. These employers should immediately review their current vaccine mandate policies to ensure compliance with the new Florida legislation.
Florida employers covered by the CMS or Executive Order 14042 will find themselves at a crossroads between complying with federal or state law. While challenges to these laws are making their way through the courts, it would be prudent for employers to consult with their legal counsel as they navigate compliance issues with potentially conflicting mandates.
Quarles & Brady LLP will continue to monitor and report on developments related to the COVID-19 pandemic and related legislation.