, FLORIDA DEPARTMENT OF LEGAL AFFAIRS PUBLISHES EMERGENCY RULE, FORMS, AND FAQs FOR PRIVATE EMPLOYER VACCINE MANDATE COMPLAINTSFlorida Statute Section 381.00317, which was enacted during a special session of the legislature and signed into law by Governor DeSantis on November 18, 2021, contains requirements for private employers that wish to mandate COVID-19 vaccination for employees. Section 381.00317 required the Florida Department of Legal Affairs to adopt emergency rules to implement processes for employee complaints against employers and investigations of complaints. The Department was also directed to specify what is meant by the term “functional equivalent of termination.” (The statute states that an employer who fails to comply with the statute and terminates an employee based on a COVID-19 mandate has committed a violation; this includes “the functional equivalent of termination.”)

On December 3, 2021, the Florida Department of Legal Affairs published an Emergency Rule. In addition, the Department published a complaint form to be used by employees to file complaints against employees, as well as a series of FAQs. Most of the FAQs are directed to employees and concern the complaint process, but some are of interest to employers.

The Emergency Rule defines a number of terms used in the statute. “Private employer” is defined as any person, sole proprietorship, partnership, limited partnership, limited liability partnership, limited liability company, corporation, or any similar legal entity that employs employees within this state, including employment agencies and employee leasing companies (excluding public employers). The FAQs state that Section 381.00317 applies to all private employers regardless of size. The size of the employer is significant only in connection with the maximum fine, which differs for employers with fewer than 100 employees and those with 100 or more employees.

“Employee” means any person who receives remuneration from a private employer for the performance of any work or service occurring within this state while engaged in any employment under any appointment or contract for hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed. Independent contractors are excluded, and the rule contains an extensive definition of “independent contractor” for purposes of Section 381.00317. Also excluded are volunteers and persons who serve in private nonprofit agencies without compensation other than expenses.

The term “functional equivalent of termination” means that the employee resigned under duress, or the employer made working conditions so difficult or intolerable that a reasonable person in the employee’s position would feel compelled to resign.

The Emergency Rule states that a complaint by an employee must be submitted to the Department on Form VAX 1, “Private Employer Vaccination Mandate Complaint.” The complaint may be submitted electronically via an interactive form on the Department’s website, or a hard copy may be completed and submitted via mail or email. If the complaint is legally sufficient, the Department will conduct an investigation. The employer will be furnished a copy of the complaint and will have 20 days to submit a written response. (Confusingly, the FAQs state that the employer will have 21 days to submit a response.) At the conclusion of the investigation, the investigative report will be submitted to the Attorney General’s designee, who will make a determination as to whether there is probable cause that Section 381.00317 has been violated. If probable cause is found, the Department will file a formal administrative complaint against the employer under the Florida Administrative Procedure Act.

The Emergency Rule does not address two significant provisions of Section 381.00317. The statute states that if the Department investigates and finds that an exemption required by the statute was not offered, or was improperly applied or denied, the Department must notify the employer of its determination and allow the employer to cure the noncompliance. The statute also states that the Department may not impose a fine if an employer reinstates an employee with back pay prior to the issuance of a final order. The Emergency Rule does not mention these opportunities for employers; therefore, it is not clear at what point an employer will be given the chance to cure an improper ruling on an exemption request, or to reinstate an employee who has been terminated (or the “functional equivalent” of terminated).

The FAQs briefly acknowledge that some employers are mandated by federal law to require their employees to be vaccinated, but do not provide any guidance for those employers that are caught between conflicting state and federal requirements. The FAQs simply state that Florida is challenging the three federal vaccine mandates and that, depending on how the courts rule, there may be effects on Section 381.00317.

With the publication of this Emergency Rule and the complaint form, all of the pieces are in place for employees to begin filing complaints against employers who impose COVID-19 vaccination requirements.

Links to the Emergency Rule, FAQs, and complaint forms are below:

Emergency Rule: https://www.flrules.org/gateway/View_Notice.asp?id=25325747)

FAQs: http://myfloridalegal.com/pages.nsf/Main/54BAC0302A3B56D88525879F0061BC86

Interactive Complaint Form: http://myfloridalegal.com/Contact.nsf/vaccinemandate?OpenForm

PDF Complaint Form: http://myfloridalegal.com/webfiles.nsf/WF/MNOS-C9BNW6/$file/VaccineMandateComplaintForm.pdf

This blog and these materials are not intended to provide legal advice. They do not represent the legal opinions of the firm, nor should they be regarded as the legal positions of any client of the law firm of Mateer Harbert, P.A. They are provided for general informational purposes only. These materials should not be used as a substitute for the advice of qualified legal counsel.

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