Yesterday, Florida Gov. Ron DeSantis signed a new law (the “Act”) designed to – as DeSantis put it – protect Floridians from losing their jobs due to COVID-19 vaccine mandates. Private employers of all sizes are prohibited from instituting COVID-19 vaccine mandates for any employees without the opportunity for the employees to obtain (in other words, “choose”) an exemption.
More specifically, Florida employers must allow employees to opt out of a COVID-19 vaccine mandate if they submit a form seeking an exemption based on one of the following grounds:
- Medical reasons, including but not limited to pregnancy or anticipated pregnancy
- Religious reasons
- COVID-19 immunity
- Opting for periodic testing (at no cost to the employee)
- Agreeing to use employer-provided personal protective equipment
For example, to claim an exemption based on religious reasons, the employee only needs to present to the employer an exemption form verifying that the employee is declining the COVID-19 vaccine because of a sincerely held religious belief. Employers cannot inquire into the veracity of the employee’s religious beliefs; unlike under federal law, the employer simply has to accept the employee’s word. The Florida Department of Health has already provided the five exemption forms – http://www.floridahealth.gov/newsroom/2021/11/20211118-florida-department-health-covid19-vaccination-exemption-forms.pr.html. Once an employer receives a completed and compliant exemption form, the employer must allow the employee to opt out of a COVID-19 vaccine mandate.
Employers violating the Act face a steep fine of up to $50,000 per violation ($10,000 per violation for employers with fewer than 100 employees). Fortunately, there is a cure provision laid out in the Act.
The Act is targeting the Occupational Safety and Health Administration’s (OSHA’s) emergency temporary standard (ETS) requiring employees to either be fully vaccinated against COVID-19 or submit to weekly testing for the virus. The OSHA ETS, which applies to employers with 100 or more employees, has been stayed by a federal appeals court (and is not being enforced until the stay is dissolved). The fate of the ETS currently rests with the Sixth Circuit Court of Appeals, and a decision (as to either the continuance of the stay or the merits of the case) does not seem imminent.
While the Act may have been targeting OSHA’s ETS, it also creates a conundrum for Florida employers that are subject to the federal contractor vaccine mandate under Executive Order 14042, which continues to target a January 4, 2022 vaccine deadline. The federal contractor vaccine mandate, which has not been stayed, does not have the testing option contained in the ETS, and its potential grounds for accommodation are limited to religious and medical grounds. Thus, some of the exceptions mentioned in the Florida law would not be permissible under the federal contractor vaccine mandate. This potentially places employers in the crosshairs of two conflicting government directives. Notably, the federal contractor vaccine mandate guidance states that the federal vaccine “requirements are promulgated pursuant to Federal law and supersede any contrary State or local law or ordinance.” Florida obviously disagrees. Hopefully, one of the many pending cases challenging the federal contractor vaccine mandate will give greater clarity soon.
The Act also directly conflicts with the Centers for Medicare & Medicaid Services (CMS) emergency regulations requiring COVID-19 vaccination for workers in certain healthcare entities participating in Medicare and Medicaid. This CMS vaccine mandate, which includes more than 17 million U.S. workers, requires eligible staff to either be vaccinated or qualify for a specific medical or religious exemption. The broader exemptions required by the Act, including a broader medical or religious exemption, are not permitted under the CMS vaccine mandate. There is no testing option available under the CMS vaccine mandate. Employees must be fully vaccinated or meet the CMS-approved exemptions. The CMS guidance specifically takes the position that under the Supremacy Clause, the IFR preempts state or local laws that prevent providers or suppliers from complying with the CMS vaccine mandate. The State of Florida is challenging the CMS vaccine mandate in a lawsuit it filed today in the U.S. District Court for the Northern District of Florida in Pensacola seeking a temporary restraining order. Two other actions are pending challenging the CMS vaccine mandate in Missouri and Louisiana. Employers will have to navigate the federal and state conflict until the courts offer more clarity.
The potential legal conflict between the ETS, the federal contractor mandate, the CMS and the Act creates challenges for all employers operating in Florida, regardless of size, and they must carefully evaluate their current vaccine policies and consult with their attorneys to ensure compliance before taking action to comply with their obligations under the Act, the federal contractor mandate, the CMS and the ETS