On November 18, 2021, Florida Governor Ron DeSantis executed a new state law that immediately banned COVID-19 vaccine mandates for employees of private and public employers.

Florida employers now have to figure out how to comply with the new Florida law while also complying, as applicable, with the federal Department of Labor Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard’s (ETS) COVID-19 vaccine mandate, the Centers for Medicare & Medicaid Services’ (CMS) Health Care Staff Vaccination Interim Final Rule and the federal contractor vaccine mandate in Federal Executive Order 14042.

Florida Private Employer Vaccine Mandates and Individual Exemptions

Florida Statute § 381.00317 prohibits private employers from imposing a COVID-19 vaccination mandate for employees unless the private employers also permit five different individual exemptions for employees. The exemption forms created by the State of Florida are posted here.

The Florida law’s prohibition extends to “any full-time, part-time, or contract employee.” The Florida statute fails to define “employee” or “contract employee” in its text. It is presumed that a “contract employee” means an independent contractor, but the law is unclear. The Florida law also does not reference employee applicants, so at present it appears that mandating COVID-19 vaccines for applicants remains permissible.

The five individual exemptions set forth in the new Florida law are as follows:

• Medical reasons.
• Religious reasons.
• “Immunity” based on prior COVID-19 infection.
• Agreeing to be tested regularly.
• Agreeing to use personal protective equipment (PPE).

To qualify for an individual exemption, Florida employees must submit an exemption statement, which varies depending on the category of exemption sought.

• A medical exemption statement must be completed by a health care professional as defined in the law. While the Florida law does not provide detailed explanations, the form provided by the State of Florida is very bare bones and simply requires the health care professional to check a box and execute the form. The Florida law also provides that pregnancy or “anticipated pregnancy” (which, at present, does not appear to have any restriction on timing) qualifies as a medical exemption.
• A religious exemption statement must mention the employee’s sincerely held religious belief. Again, the Florida law lacks details regarding this exemption, but the form provided by the State of Florida again just requires the employee to execute a statement that mentions the employee’s sincerely held religious belief (including moral or ethical belief). The form specifically prohibits the employer from challenging the veracity of the employee’s belief.
• An immunity exemption statement must contain “medical evidence” such as laboratory test results (no time limit on the prior infection is included at present in the Florida law). The form provided by the State of Florida requests the test date, but does not put any time limitation on how old the test can be.
• A testing exemption statement must include a commitment to comply with “regular testing” (the form provided by the State of Florida indicates that testing cannot be more frequent than weekly). The required testing must be at no cost to the employee. There is no reference in the Florida law to whether the employee’s time incurred in getting tested must be compensated.
• A personal protective equipment exemption statement must include the employee’s agreement to comply with the employer’s PPE requirements when around others. Again, the Florida law does not define PPE.

The Florida law provides that existing “employer COVID-19 vaccination mandates” are “invalid until the Department of Health files its emergency rules or 15 days after the effective date of this law, whichever occurs first.”

As noted above, the new Florida law includes several gaps and missing definitions. However, the Florida law directs the Florida Department of Health to promulgate regulations which likely will fill in some of those gaps. The Florida Department of Health is required to issue regulations related to the testing frequency, the eligible methods of testing, what evidence will be considered “competent” for purposes of the immunity exemption statement and any relevant circumstances to be considered regarding an employee’s anticipated pregnancy.

The new Florida law is not clear as to whether an employer may also require regular testing/masking of employees who qualify for one of the five individual exemptions.

The Florida law does prohibit employers from implementing a policy that prevents employees from being vaccinated against COVID-19.

Enforcement

The new Florida law does not create 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 improperly applied or denied.

The employer can cure the noncompliance, but the new Florida law does not explain how the curing process would work.

If the Florida attorney general finds an employee was terminated because the employer violated the law, the Florida attorney general must impose an administrative fine not to exceed $10,000 per violation for employers with fewer than 100 employees and not to exceed $50,000 per violation for employers with 100 or more employees.

The amount of the fine will depend on several factors set forth in the law, 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.
• Any other mitigating or aggravating factor that fairness or due process requires.

An employer may also avoid a fine by reinstating the employee who was allegedly terminated in violation of the law with back pay before issuance of a final order. The new Florida law does not appear to be retroactive. Accordingly, it does not appear that employees terminated prior to the effective date of this law, November 18, 2021, can take advantage of the complaint procedure.

Government Employees

Florida Statute § 112.0441 forbids Florida government entities from requiring employees to be vaccinated as a condition of employment.

Conflict/Preemption with Federal Vaccine Mandates

The new Florida law creates significant risks for companies in the state with 100 or more employees. Those companies could soon face steep federal penalties if they do not follow the OSHA ETS requiring employees to be vaccinated or be tested regularly. Health care employers, such as hospitals that are covered by a more strict mandate from the CMS, are similarly vulnerable.

If those employers comply with the federal mandates, they will likely be subject to penalties for violating the new Florida law since some of the state’s specific exemptions are not permitted under the federal ETS/CMS rules.

In the ETS, OSHA explicitly states that the ETS preempts state laws like the new Florida law. However, a panel of the U.S. Court of Appeals for the Fifth Circuit has temporarily stayed the ETS. The multiple consolidated legal challenges regarding the ETS are now pending before the U.S. Court of Appeals for the Sixth Circuit. In all likelihood, the preemption issue will have to be litigated to bring clarity to employers covered by both the ETS and the new Florida law.

The new Florida law also conflicts with the vaccination requirement in the CMS Interim Final Rule and further conflicts with Executive Order 14042’s federal contractor mandate. There are pending legal challenges to those federal requirements underway in Florida and other states. However, at present, no court has ordered a stay of either 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 or Executive Order 14042 have only this new Florida law to follow (since the ETS rules are stayed by court order, and OSHA itself has suspended its implementation and enforcement). Those employers may want to consider suspending any vaccine mandates in place while continuing to monitor legal developments. The best practices for Florida employers is to develop policies, processes and templates to comply with the new Florida law. And, as noted above, parts of the Florida law are due to be further fleshed out by the Florida Department of Health.

Florida employers covered by the CMS Interim Final Rule or Executive Order 14042 are caught between federal and state law. These employers will need to balance the risk of losing business with the federal government or the ability to participate in Medicare / Medicaid programs with violating the new Florida law and facing potential penalties from the State of Florida.

Moreover, Florida employers that have programs in place to voluntarily follow the ETS rules could now face employee complaints and possible investigation and administrative fines by Florida’s attorney general if they violate the new Florida law’s limitations on vaccine mandates for employees. While employers wait for courts to resolve this conflict between federal and state law, employers covered by the federal vaccination measures must undertake their own risk analysis and likely seek legal advice.

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