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)
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.
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.”
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.”
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.
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:
The employer does not offer the exemption;
An employer improperly denies an exemption, or
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:
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; and
Any other mitigating or aggravating factor that fairness or due process requires.
§ 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.
For Florida employers not subject OSHA’s ETS, compliance with the
new Florida can be accomplished one of two ways:
Do not implement a vaccine mandate for employees; or
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 firstname.lastname@example.org.