On November 15, the Florida Legislature convened for a special session to consider four proposed laws reacting to the recent federal vaccine mandates applicable to various employers throughout the country. Governor DeSantis’s announced intent for calling this special session and promoting the bills was to “stop the coercion” of the federal government in requiring employers to mandate their employees be vaccinated against COVID-19.

One of the four bills signed into law was HB-1B. Although other Florida prohibitions wholly prohibit public employers from mandating vaccines, this bill notably does not prohibit private employers in Florida from doing so. Instead, it explicitly allows vaccine mandates but imposes restrictive requirements on any private business that chooses to maintain one.

The Florida Law

The new Florida law notes private employers may require employees to be vaccinated. However, 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 reasons.

To effect such an opt-out, an employee need only provide the employer with a completed “exemption statement.” The law details what, in most instances, needs to be included in such a statement to obtain the exemption requested. The law expressly states employers must allow an employer to opt out – not simply consider a request to opt out. These are the five permissible opt-out reasons:

1. Medical Reasons

An employer must allow an employee to opt-out for medical reasons, including for pregnancy or anticipated pregnancy. Additionally, the law specifically does not require a “disability” or a “handicap” (the term the Florida Civil Rights Act uses as a synonym for the ADA’s disability definition), but notes only an employer must allow an accommodation for a medical reason.

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 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.” Unlike a request for accommodation under Title VII because a sincerely held religious belief conflicts with the policies of the employer, this Florida law directs employers to exempt 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.” The Florida Department of Health is directed to adopt a standard for such demonstrations.

4. Periodic Testing

While the OSHA Emergency Temporary Standard allows an employer to provide an option to its employees for testing as an alternative to vaccination, the Florida law requires employers to allow an employee to test as an opt-out. 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

Last, the Florida law allows employees to present an exemption statement indicating the employee agrees to comply with an employer’s “reasonable written requirement” to use employer-provided personal protective equipment when in the presence of other employees or other persons.

Enforcement of the Florida Law

Employees who feel their employer has violated the new law may file a complaint with the Department of Legal Affairs. Violations for which complaints can be filed include: 1) not being offered an exemption, 2) being improperly denied an exemption, or 3) being terminated as a result of a vaccine mandate.

If the employee has not been terminated, and the 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.

Federal Preemption

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.