On November 18, 2021, Florida Governor Ron DeSantis signed HB 1B into law, which creates Fla. Stat. 381.00317 and imposes new limitations on private employers’ ability to mandate COVID-19 vaccinations in the workplace. The law is effective immediately, and now Florida employers must adapt. Here is what you need to know:
What does the new law require?
It requires private employers (regardless of size) adopting a vaccination mandate to provide their full-time, part-time, or contract employees the following exemptions to opt-out of the mandate:
- “Medical reasons,” including, but not limited to, pregnancy or anticipated pregnancy. The employee must present to the employer an “exemption statement” that is dated and signed by a physician or physician assistant, or an APRN, who has examined the employee. The statement must provide that, in the professional opinion of the physician, physician assistant, or APRN, COVID-19 vaccination is not in the best medical interest of the employee.
- “Religious reasons.” The employee must present to the employer an “exemption statement” indicating that the employee declines vaccination because of a sincerely held religious belief.
- “Covid -19 immunity.” The employee must present an “exemption statement” demonstrating competent medical evidence that the employee has immunity, documented by the results of a valid lab test performed on the employee. The Department of Health shall adopt a standard for demonstrating competent medical evidence of immunity.
- “Periodic testing.” An “exemption statement” must indicate that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.
- “Use of employer-provided personal protective equipment.” An “exemption statement” must indicate that the employee agrees to comply with the employer’s reasonable, written requirement to use employer-provided PPE when in the presence of other employees or other persons.
Please note that employers must use the following forms issued by the Florida Department of Health (or substantially similar forms) for employees to submit “exemption statements”:
- Medical Exemption from COVID-19 Vaccination
- Religious Exemption from COVID-19 Vaccination
- Exemption from COVID-19 Vaccination Based on COVID-19 Immunity
- Exemption from COVID-19 Vaccination Based on Periodic Testing
- Exemption from COVID-19 Vaccination Based on Employer-Provided Personal Protective Equipment
The Department of Health’s emergency rules implementing the new law can be found here.
How do employees request exemptions?
Employers shall use forms adopted by the Department of Health, or substantially similar forms, for employees to submit “exemption statements.”
What happens when an exemption is not offered?
An employee may file a complaint with the Department of Legal Affairs alleging that an exemption has not been offered or has been improperly applied or denied in violation of this section. If the department investigates and finds that the exemption was not offered or was improperly applied or denied, it must notify the employer of its determination and allow the employer the opportunity to cure the noncompliance. It is not clear if there are any time restrictions on the employer’s opportunity to cure its noncompliance.
Is it unlawful to terminate an employee who does not comply with a vaccine mandate?
Yes, if the mandatory vaccination policy fails to provide the listed exemptions. The terminated employee may file a complaint with the Department of Legal Affairs, and the Department shall conduct an investigation. The investigation must, at a minimum, determine whether the employer has imposed a vaccination mandate, whether the employee submitted a proper exemption statement and complied with any specified condition, and whether the employee was terminated as a result of the vaccination mandate.
What are the penalties for noncompliance?
If the Attorney General finds that an employee has been improperly terminated, the AG must impose an administrative fine not to exceed:
- $10,000 per violation (if fewer than 100 employees)
- $50,000 per violation (if 100 or more employees)
Notwithstanding the above, the AG may not impose a fine on an employer that reinstates the employee, with back pay, prior to the issuance of a final order. The AG may consider a variety of factors in determining the amount of any fine, including: (i) whether the violation was knowing and willful; (ii) good faith attempts to comply; (iii) corrective action taken by the employer; (iv) previous fines; and (v) other mitigating or aggravating factors.
How does the new law affect current vaccine mandates?
According to the statute, current COVID-19 vaccination mandates will be “deemed invalid until the Department of Health files its emergency rules or 15 days after the effective date of this act, whichever occurs first.”
How does the new law conflict with OSHA’s ETS?
Employers will have to wait for the Sixth Circuit Court of Appeals to make a ruling on the OSHA ETS. Depending on the outcome, the OSHA ETS may preempt the new Florida Law.
Please contact your attorney if you have further questions, and of course, stay tuned for further developments.