Mary A. Edenfield
On November 18, 2021, Florida Governor Ron DeSantis signed into law legislation that was passed during a special session of the legislature. Among other things, the legislation created a new statute (Section 381.00317) which addresses COVID-19 vaccination mandates by private employers. The following is a brief discussion of the new law.
Can private employers in Florida require employees to be vaccinated against COVID-19?
Yes, however, there are requirements that apply. Employers that mandate vaccination must allow employees to opt out under any of five specific exemptions:
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- Medical reasons, which include but are not limited to, pregnancy or anticipated pregnancy
- Sincerely held religious belief
- COVID-19 immunity
- Periodic COVID-19 testing, which must be provided by the employer at no cost to the employee
- Use of personal protective equipment (PPE), which must be provided by the employer at no cost to the employee, when in the presence of other employees and/or other persons, in accordance with the employer’s reasonable written requirements.
How does an employee opt out of a vaccination requirement under the exemptions?
Employees who wish to opt out under one of the exemptions must submit an exemption statement form to the employer. The Florida Department of Health has developed forms for each of the five exemptions which are posted on its website:
Employers must use the forms developed by the Department of Health or substantially similar forms.
What must an employee do to claim an exemption based on medical reasons?
The employee must present the appropriate exemption statement form, signed and dated by a Florida-licensed physician, physician assistant, or advance practice registered nurse, stating that in the provider’s professional opinion, COVID-19 vaccination is not in the best medical interest of the employee.
What is meant by “anticipated pregnancy?”
The Florida Department of Health has published an emergency rule (64DER21-17) stating that “anticipated pregnancy” means that the employee is of child-bearing age and intends to become pregnant. The employer is required to accept the representation of the employee that the employee intends to become pregnant. The medical exemption for anticipated pregnancy remains in effect as long as the employee intends to become pregnant and is of child-bearing age.
What must an employee do to claim an exemption based on religious reasons?
The employee must present the appropriate exemption statement form. The employer is not permitted to inquire into the veracity of the employee’s religious beliefs.
What must an employee do to claim an exemption based on COVID-19 immunity?
The employee must present the appropriate exemption statement form and proof of either:
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- A positive laboratory result from a diagnostic test that has received full approval by, or emergency use authorization from, the FDA; or
- A positive laboratory result from an antibody test that has received full approval by, or emergency use authorization from, the FDA.
Do private employers have to provide the potentially costly options of employer-provided periodic testing and employer-provided PPE?
Yes. The statute requires that, if an employer mandates vaccination, all five exemptions must be made available to employees. Therefore, if an employer chooses to have a vaccination requirement:
- The employer must provide periodic COVID-19 testing for employees who opt out using this exemption, at no cost to the employees. The Department of Health emergency rules state that employees can be tested no more frequently than weekly, or upon evidence of COVID-19 symptoms. The employer must use a diagnostic test that has received full approval by, or emergency use authorization from, the FDA.
- The employer must have reasonable written requirements (e.g., a policy) requiring unvaccinated employees to use PPE when in the presence of other employees and other persons and must provide employees who opt out under this exemption with the required PPE, at the employer’s cost.
Do private employers have to allow employees to opt out of vaccination requirements?
Yes. The statute states that if an employer receives a completed exemption statement form based on one of the exemptions, the employer must allow the employee to opt out of the employer’s vaccination requirement.
The statute prohibits an employer from terminating an employee based on a COVID-19 vaccination mandate. Termination of an employee, or the “functional equivalent of termination,” is a violation of the statute. The Florida Department of Legal Affairs is required to adopt an emergency rule specifying what is meant by the “functional equivalent of termination.”
How will the new law be enforced?
An employee may file a complaint with the Department of Legal Affairs alleging that:
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- An exemption has not been offered;
- An exemption has been improperly applied or denied; and/or
- The employee has been terminated as a result of the employer’s COVID-19 vaccination mandate.
The Department of Legal Affairs will investigate and, if it is determined that an exemption was not offered, or was improperly applied or denied, the department will allow the employer the opportunity to cure the noncompliance. However, if the employee was improperly terminated, the employer will be fined. The statute provides for fines of up to $10,000 per violation for employers with less than 100 employees, and up to $50,000 per violation for employers with 100 or more employees. An employer can avoid a fine by reinstating the terminated employee with back pay.
What should Florida employers do?
Employers that do not intend to require their employees to be vaccinated do not need to take any action.
Because both Section 381.00317 and the Department of Health emergency regulation took effect on November 18, employers that wish to require their employees to be vaccinated should immediately implement procedures to permit employees to opt out under each of the five exemptions, including employer-provided testing and employer-provided PPE. Vaccination requirements should not be enforced until such procedures are in place.
Some employers are subject to federal requirements to vaccinate employees. (Employers with 100 or more employees are subject to the OSHA Emergency Temporary Standard [ETS], certain Medicare and Medicaid certified health care employers are subject to CMS regulations, and federal contractors are subject to Executive Order 14042.) Ultimately, those employers may have to determine whether to comply with the federal requirements or the state law. Both OSHA and CMS have taken the position that the federal regulations preempt conflicting state laws. Currently both the ETS and the CMS regulations are being challenged in court, and OSHA has been enjoined from implementing and enforcing the ETS. As with so much having to do with COVID-19, the situation is in flux and affected employers should closely monitor developments.
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.