Last week, Florida Governor Ron DeSantis signed into law House Bill 1B creating roadblocks for private employers to enforce a company-wide vaccine mandate within the state. While the new law does not outright ban private employer vaccine mandates in Florida, it does require private employers to offer five exemptions to any mandatory vaccination policy (medical, religious, immunity based on prior infection, periodic testing at no cost to the employee, and agreeing to comply with employer-provided PPE) for all full-time, part-time, or contract employees. The law does not appear to allow employers to deny employees exemption requests who have submitted an exemption statement for any of the five reasons. The employer would have to allow the employee to opt-out of a vaccine mandate.
The five exemption categories are below:
- Medical Reasons: If an employee seeks an exemption based on medical reasons, including, but not limited to, pregnancy or anticipated pregnancy, the employee must present a dated and signed exemption statement from a physician, physician assistant, or advanced practice registered nurse that has examined the employee. The statement must provide that, in the professional opinion of the examiner, the COVID-19 vaccination is not in the best medical interest of the employee.
- Religious Reasons: If an employee seeks an exemption based on a religious reasons, the employee must present an exemption statement indicating that the employee declines vaccination because of a sincerely held religious belief.
- COVID-19 Immunity: If an employee seeks an exemption based on COVID-19 immunity, the employee must present an exemption 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 Department of Health is tasked with adopting a standard for demonstrating such “competent medical evidence.”
- Periodic Testing: If an employee seeks an exemption based on periodic testing, the employee must present an exemption statement that indicates the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.
- Employer-Provided Personal Protective Equipment: If an employee seeks an exemption based on employer-provided PPE, the employee must present an exemption statement that indicates the employee will comply with the employer’s reasonable written requirements to use employer-provided PPE when in the presence of other employees or other persons.
The law requires employers to use forms adopted by the Florida Department of Health, or substantially similar forms, for employee exemption statements. The Florida Department of Health already has posted the five forms for an employee to make an exemption request under the new law (links attached), together with additional relevant information on its website: http://www.floridahealth.gov/newsroom/2021/11/20211118-florida-department-health-covid19-vaccination-exemption-forms.pr.html.
If an employee is terminated after submitting an exemption statement based on a COVID-19 vaccine mandate or the employer does not offer all five exemptions, the employee can file a complaint with the Florida Department of Legal Affairs. If the Attorney General finds an employee improperly was terminated, the Attorney General must impose a fine not to exceed $50,000 for businesses with 100 employees or more; or $10,000 for businesses with under 100 employees, on a per violation basis. If an employee is reinstated and provided with backpay to the date that the complaint was filed, a fine will not be imposed. The law does not specifically create a private right of action for a terminated employee to directly sue their employer.
In determining the amount of a fine, the Attorney General may consider the following factors:
- Whether the employer knowingly and willfully violated this section.
- Whether the employer has shown good faith in attempting to comply with this section.
- Whether the employer has taken action to correct the violation.
- Whether the employer has previously been assessed a fine for violating this section.
- Any other mitigating or aggravating factor that fairness or due process requires.
The law will take effect immediately and expire on June 1, 2023. The law does not impact non-employees, but works in conjunction with Fla. Stat. § 381.00316, prohibiting companies in Florida from requiring patrons and customers to provide proof of vaccination to gain access to, entry upon, or service from a business.
This new law sets up a conflict between Florida law and the federal government’s vaccine mandate for government contractors (EO 14042). Florida is one of many states already contesting that executive order in federal court. It also sets up a conflict between Florida law and the ETS recently promulgated by OSHA (as OSHA’s ETS requires weekly testing in lieu of mandatory vaccinations), although enforcement of the ETS recently was stayed by the Fifth Circuit. The case thereafter was consolidated in the Sixth Circuit, together with all related-filed petitions from other Circuits. The panel of judges that will review the OSHA ETS is not yet known, but the Sixth Circuit generally is considered a conservative court with a strong majority of Republican appointees. If allowed to stand, either EO 14042 or OSHA’s ETS would preempt Florida’s new law (and other states with similar restrictions).
Despite suspending OSHA’s enforcement of the ETS following the stay by the Fifth Circuit, the White House continues urging private businesses to protect workforces by moving forward with vaccine mandates by the deadlines to comply set forth in the ETS. Psaki said “Let me be very clear, our message to businesses right now is to move forward with measures that will make their workplace safer and protect their work forces from COVID-19” and “We are still heading towards the same timeline. The Department of Justice is vigorously defending the emergency temporary standard in court and we are confident in OSHA’s authority.”
According to Jerome Adams, MD, MPH, who served as the 20th Surgeon General of the United States, “Regular (eg weekly) testing is useful as an adjunct to or as a lesser alternative to vaccination in the workplace. However due to the fact that people can become infected (and infectious) between tests, one should not assume that regular testing provides equivalent workplace protection to a policy that maximizes vaccinations. Additionally, testing provides no protection to the individual (as you are detecting disease vs preventing it), and still leaves businesses at increased risk of healthcare expenditures, and of outbreaks that can initiate prior to the next scheduled test. By far the safest choice for the individual and the organization is to ensure vaccination.”
Until litigation challenging the preemptive effect of EO 14042 and OSHA’s ETS is resolved, businesses may consider carving out Florida and any other state from its mandatory vaccination policy enacting similarly broad mandatory exemptions and/or restrictions by legislation or executive order, or pivoting at least temporarily to a combination of testing and mask wearing requirements as a condition for employees to return to workplaces unvaccinated, recognizing that those protocols are not generally as safe and effective as vaccines.