Surviving The Impact Of Covid-19: V. New Florida Law Restricts Employer Vaccine Mandates

New Law

The Federal government has been steadily creating more regulations to have various types of employers mandate their employees be vaccinated for COVID-19. Florida employers now have additional considerations besides following the status of the federal Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS), the Centers for Medicare & Medicaid Services (CMS) vaccine mandate, and the federal contractor vaccine mandate in Executive Order 14042.

As a reaction to these recent federal vaccine mandates, the Florida Legislature was called into special session and passed Fla. Stat. § 381.00317 (2021) which was signed into law and became effective November 18, 2021. This new law has been promoted as Florida’s attempt to “stop the coercion” of the federal government in requiring employers to mandate their employees be vaccinated against COVID-19.

To date, once an employer mandated the vaccine as a condition of employment, there had been exemptions only for medical and religious reasons. While this new law continues to permit private employers to require employees to be vaccinated, a private employer may not impose a COVID- 19 mandate without providing individual exemptions allowing an employee to “opt out” of such mandate based on one of five (5) reasons. The law expressly requires that employers must allow an employer to opt out pursuant to one of the following five (5) justifications:

1. Medical Reasons

   An employer must allow an employee to opt-out for medical reasons, including pregnancy or anticipated pregnancy. To claim an exemption based on a medical reason, the employee must present to the employer an exemption statement, dated and signed by a physician, physician assistant, or advanced practice registered nurse certifying that, in their professional opinion, the COVID-19 vaccination is not in the best medical interest of the employee.

2. Religious Reasons

   Employees can also claim exemption based on “religious reasons.” Specifically, the law requires that employers allow an exemption for an employee who presents a statement indicating that the employee declines COVID-19 vaccination because of a “sincerely held religious belief.”

3. COVID-19 Immunity

   An employer must also allow an exemption if an employee presents a statement demonstrating “competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.”

4. Periodic Testing

   To claim this exemption, the employee’s exemption statement must indicate the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee. The Florida Department of Health is directed to determine frequency of testing, types of testing, etc.

5. Use of Employer-Provided PPE

Employees are permitted to present an exemption statement indicating that the employee agrees to comply with an employer’s “reasonable written requirement” to use employer-provided personal protective equipment (PPE) when in the presence of other employees or other persons.

Enforcement of the Florida Law

An employer that violates this law if:

1. The employer does not offer the exemption;

2. An employer improperly denies an exemption, or

3. An employer terminates an employee for not complying with a vaccine mandate.

   If the employee has not been terminated, and the Florida Attorney General Department of Legal Affairs determines the employee was not offered an exemption or the exemption was improperly applied or denied, the employer must be notified of the determination and provided with an opportunity to cure the violation. If the Department of Legal Affairs finds the employee was improperly terminated as a result of a vaccine mandate, the attorney general must impose a monetary administrative fine. The maximum amount of the fine is set at $10,000 per violation for

   employers with fewer than 100 employees and at $50,000 per violation for employers with 100 or more employees. No fine may be levied if an employer reinstates the terminated employee and provides full back pay to the date of the complaint prior to the issuance of a final order.

   The fine will depend on several factors set forth in the statute, including:

   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 violating the law; and

   5. Any other mitigating or aggravating factor that fairness or due process requires.

Federal Preemption

§ 381.00317 sets up a conflict with OSHA’s ETS that a panel of the U.S. Court of Appeals for the Fifth Circuit has temporarily stayed. The consolidated challenges are now pending before the U.S. Court of Appeals for the Sixth Circuit following a random selection of that court by the Judicial Panel on Multidistrict Litigation on November 16, 2021. In the ETS, OSHA explicitly states that the ETS preempts state laws like this one.

The Supremacy Clause of the U.S. Constitution, Art. VI, § 2 provides when state law and federal law conflict, federal law displaces or preempts state law. The Supreme Court has noted when rules and regulations do not clearly state whether preemption applies, the lawmakers’ intent should control, but with a bias against preempting state laws. Under the Supremacy Clause, conflict arises when it is impossible to comply with both the state and federal regulations or when the state law interposes an obstacle to the achievement of the federal law or its discernible objectives.

Laws are preempted only to the extent they actually conflict. If there is a way for employers to comply with both a federal mandate and related state law requirements at the same time, employers likely need to do so. Until affected Florida employers receive judicial clarification of their obligations under federal and state law, they would be well-advised to consult with counsel about navigating potentially conflicting mandates regarding COVID-19 vaccines.

Compliance

For Florida employers not subject OSHA’s ETS, compliance with the new Florida can be accomplished one of two ways:

1. Do not implement a vaccine mandate for employees; or

2. Implement a policy requiring employee vaccinations that provides the required individual exemptions and be prepared to establish a robust process for managing and evaluating those requests.

Florida employers covered by the ETS or Executive Order 14042 are caught between federal and state law. Until further guidance is provided by the court system, employers covered by those federal measures must balance the risk of losing business with the federal government as a contractor or the ability to participate in Medicare / Medicaid programs. If a Florida employer complies with the federal mandates, it risks violating the state law and facing fines under the new Florida statute.

If you have any questions or would like more information about this new law, please contact Ben Cristal directly at bcristal@cristallawgroup.com.