Florida Law Limits Employer Vaccine Mandates – Employment and HR – United States πŸ”₯πŸ”₯πŸ”₯πŸ”₯πŸ”₯


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Florida Law Limits Employer Vaccine Mandates


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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
.

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