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Florida employers face conflicting federal/state legal obligations.

It can be tough to keep up. On Thursday of last week, the federal Occupational Safety and Health Administration (OSHA) issued an Emergency Temporary Standard (ETS) establishing mandatory vaccination requirements for employers with 100 or more employees. The regulation was published in the Federal Register the next day.

The next day, a panel of the United States Court of Appeals for the Fifth Circuit issued an order staying the ETS, while the legality of OSHA’s authority to implement the ETS is litigated.

Finally, Governor DeSantis has called the Florida Legislature into a Special Session. It will begin on Monday, November 15, 2021, and go no later than Friday, November 19, 2021. Part of the call of the Special Session will include the consideration of legislation that would place substantial limits on a Florida employer’s compliance with the ETS, by mandating that employers implement broad categories of exemptions permitting employees to “opt out” of vaccination requirements, with substantial fines for violations.

Florida employers could be forgiven at this point for throwing up their collective hands and giving up. If only that were an option. But compliance with the federal ETS will require substantial ramp up time for employers, with new obligations beginning December 5, and an ultimate vaccination-or-testing deadline of January 4, 2022. All employers, (particularly those with fewer than 100 employees and not encompassed by the ETS), should evaluate any existing vaccination or testing policies once we learn what laws emerge from the Florida legislative session next week. Employers that have already implemented mandatory vaccination policies should review those policies for compliance with any new Florida laws, once the contours of those laws (and emergency rules by the Florida Department of Health under those laws) become clear.

Employers with at least 100 employees should begin preparations for compliance with the OSHA ETS now, while considering what to do if legal challenges to the ETS remain unresolved as the December 5 date approaches, and new Florida laws impose limits on compliance with the ETS. Although the OSHA ETS would likely preempt state law requirements that directly conflict with the ETS, the scope of that preemption may also be an issue that courts will be called upon to resolve.

Watch this space.