Even MORE Vax News: Florida’s Restrictions on Vaccination Mandates

by Lana L. Rupprecht, Esq. - Director, Product Compliance

& Marti Cardi, Esq. - Vice President, Product Compliance

November 24, 2021

 

On the same day we were preparing our blog discussing the status of federal vaccination mandates applicable to private employers, the state of Florida enacted its own law significantly restricting—but not prohibiting—Florida private employers’ ability to impose vaccination mandates. 

Here is a quick rundown of this law as it applies to private employers subject to this law.

NOTE: The law also contains provisions relating to public employers, including educational or government institutions, which are not covered here.

  • The law applies to full-time, part-time or “contract” employees.
  • Private employers may impose a COVID-19 vaccination mandate in the workplace but if they do so, they must permit employees to choose to be exempt for any one of the following reasons:
    • Medical reasons. The statute states this also includes pregnancy or expectation of pregnancy. The employee is required to submit a statement from a medical provider certifying the COVID-19 vaccination is not in the best medical interest of the employee.
    • Religious reasons. Employees may receive an exemption based on a sincerely held religious belief – BUT Inquiries into the veracity of the employee’s religious beliefs are prohibited according to the state’s suggested exemption form.
    • COVID-19 Immunity from Prior Infection. Employees will need to provide “competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.” 
    • Periodic testing. Employees must be permitted to opt-out of a private employer’s vaccination requirements through testing “at no cost to the employee.”
    • Use of employer-provided personal protective equipment (PPE).This applies to employees who present “an exemption statement indicating that the employee agrees to comply with the employer's reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.”
  • Employers are required to use forms created by the Florida Department of Health with respect to each exemption or substantially similar forms. These forms can be found here.
  • If an employer receives a completed exemption form for any of the 5 reasons stated above, the employer must allow the employee to opt out of its mandatory vaccination policy.
  • There is no private right of action under this law, but employees may report violations to the Florida 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.
  • For nontermination violations, the employer must be notified of the violation and given an opportunity to cure.
  • If an employer improperly terminates an employee as a result of the vaccine mandate, the Florida Attorney General has the authority to impose the following fines:
    • Up to $10,000 for private entities employing less than 100 people
    • Up to $50,000 for private entities employing 100 people or more
  • **The Attorney General may not impose a fine on an employer that reinstates a terminated employee with back pay.
  • Finally, the law directs the Florida Department of Health, Department of Legal Affairs, and the Department of Economic Opportunity to develop emergency rules to implement the law, which are expected to be out on or before December 4th. Employers will hopefully receive more guidance from these rules.

Tips for Employers

  • The fate of the OSHA ETS is still undetermined. If you are a Florida employer subject to the OSHA ETS and this law, you should consult with your attorney on next steps.
  • Employers in Florida who are also subject to the Interim Final Rule (“IFR”) issued by the Centers for Medicare and Medicaid Services (“CMS”) applicable to Medicare- and Medicaid-certified providers and suppliers which we discussed here OR are federal contractors or subcontractors subject to Executive Order (“EO”) 14042 which we discussed here should consult with their attorney. To the extent there is a direct conflict, the IFR and CMS might preempt this Florida law.
  • Employers mandating vaccinations who are subject to this law should, if they have not already done so, implement a robust process on exemption requests.
  • This law does not prohibit a private employer subject to this law from imposing vaccination mandates but as noted above, it imposes additional requirements.

Also, just in case you missed our previous blogs we prepared on vaccination laws, they can be here, here, here and here.   And as always, we will continue to keep you posted on key developments in this area.

Additional Resources

Florida Statute: h0001Ber.docx (myfloridahouse.gov)

Florida Department of Health COVID-19 Vaccination Exemption Forms | Florida Department of Health (floridahealth.gov)

Matrix Can Help!

Matrix offers ADA and medical vaccine exemption services for our ADA clients. For more information about our solutions, please contact your Matrix or Reliance Standard account manager, or reach us at ping@matrixcos.com.