Practically speaking, the law makes it very difficult for Florida employers to require that their employees be vaccinated, except perhaps in a situation where a federal law or rule preempts the Florida law.
On November 18, 2021, Florida Governor Ron DeSantis signed into law a statute that severely limits private-sector employers from requiring that their employees be vaccinated against COVID-19. The Legislature passed the law in a special session specifically called to address vaccine mandates and related issues. The law went into effect immediately.
Exemptions
The statute prohibits Florida private-sector employers from implementing employee “vaccination mandate(s)” unless employees can opt out of such mandates for the following five specific exemption reasons.
Medical Reasons
Employees seeking exemption for medical reasons have to produce a statement from a medical professional stating that “vaccination is not in the best medical interest of the employee.” Under this exemption, “pregnancy or anticipated pregnancy” qualifies as a medical reason, and the Florida Department of Health (DOH) is required to develop rules governing the scope of the “anticipated pregnancy” exemption. The scope of this exemption is broader than the “disability” exemption currently available under federal and state law and will likely permit more employees to opt out for medical reasons.
Religious Reasons
Employees seeking to opt out for religious reasons are required to provide a statement stating that the employee has a “sincerely held religious belief” preventing the employee from getting a COVID-19 vaccine. The scope of this exemption is similar to, but conceivably broader than, what is currently available under federal and state law.
COVID-19 Immunity
This exemption allows employees claiming to have so-called natural immunity against COVID-19 to opt out of a vaccine mandate by providing “competent medical evidence of immunity.” The DOH is required to establish a standard governing the scope of this exemption.
Periodic Testing
To claim this exemption, an employee is required to provide a statement agreeing to “comply with regular testing,” at no cost to the employee.
Employer-Provided Personal Protective Equipment
This is the most significant of the five opt-out reasons. Employees can claim this exemption by agreeing to “comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when in the presence of employees or other persons.” Under this exemption, an employee who agrees to comply with a written mask mandate would seemingly be exempt from any vaccination requirement, without demonstrating any of the other bases for exemption.
Exemption Forms
The DOH has released five forms that employees can use to substantiate requests for exemption. The forms are very simple and put a very low burden on the employee. It is unclear what right employers have to question an exemption request or to request that an employee provide more information. Consequently, employers should be very cautious and thoughtful when dealing with such a request.
Limitations and Penalties
Significantly, the statute’s exemption framework is limited to vaccine mandate policies. Nothing in the law prohibits employers from enforcing mask mandate policies or requiring that unvaccinated employees receive COVID-19 testing on a regular basis.
Arguments can be made that a “vaccine or test” policy violates the Florida law because it does not provide for other options to vaccination. The strength of this claim may depend on how the policy is worded, and an employer can take steps to minimize legal risk with a carefully written policy.
Employers who fail to offer and properly apply the above exemptions to vaccine mandate policies will face significant penalties. First, any employee who loses their job because “an exemption has not been offered or has been improperly denied or applied” can file a written complaint with the state. If the Florida attorney general finds that the employer violated the law, they “must” fine the employer: (1) $10,000 per violation if the employer has fewer than 100 employees; or (2) $50,000 per violation if the employer has 100 or more employees. Despite the law’s mandatory language requiring the fines, there is also language that gives the attorney general some leeway in assessing the amounts based on the employer’s demonstration of “good faith,” the employer’s attempt to correct any violations or other “mitigating or aggravating” factors. In addition to the monetary penalties, the statute also provides that the terminated employee could receive unemployment compensation.
There also are complicated preemption issues, which we will address in a forthcoming Alert.
What This Means for Florida Employers
Practically speaking, the law makes it very difficult for Florida employers to require that their employees be vaccinated, except perhaps in a situation where a federal law or rule preempts the Florida law. Consequently, any Florida business that already has a vaccine mandate policy (or even a “vaccine or test” policy) in place should consult with legal counsel and take steps to revisit that policy. Likewise, any Florida business planning to comply with the federal vaccine mandate rules must now take this state law into consideration.
About Duane Morris
Duane Morris has created a COVID-19 Strategy Team to help employers plan, respond to and address this fast-moving situation. Contact your Duane Morris attorney for more information. Prior Alerts on the topic are available on the team’s webpage.
For More Information
If you have any questions about this Alert, please contact Kevin E. Vance, any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.
Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.