In a surprising move for a state that has long favored giving employers the freedom to do business with relatively few constraints, the Florida legislature and Governor DeSantis passed House Bill No. 1-B which prohibits any private employer from imposing a COVID-19 vaccination mandate for any full-time, part-time or contract employee without providing the individual exemptions discussed below which allow an employee to opt out of such requirements.
In essence, this law gives unvaccinated employees the right to work without having medical or religious reasons to not be vaccinated.
Many Floridians are dying to know the details of the new law, while others will simply die from COVID-19 that they will contract in the workplace as a result thereof.
The new law also prohibits all governmental entities and educational institutions in the State from imposing mandatory workplace COVID-19 vaccine policies.
The law as relates to private employers is relatively simple, and provides for the following 5 individual exemptions to a mandatory COVID-19 vaccination policy:
1. Medical Exemption.
Employers must grant an exemption to a mandatory COVID-19 vaccination policy if an employee presents a statement signed by a physician, physician assistant or advanced registered nurse that states that, in their opinion, “COVID-19 vaccination is not in the best medical interest of the employee.” In addition, an employer must grant an exemption for pregnancy or anticipated pregnancy.
The statute with respect to this reads as follows:
To claim an exemption based on medical reasons, including, but not limited to, pregnancy or anticipated pregnancy, the employee must present to the employer an exemption statement, dated and signed by a physician or a physician assistant who holds a valid, active license under chapter 458 or chapter 459, or an advanced practice registered nurse who holds a valid, active license under chapter 464, who has examined the employee. The statement must provide that, in the professional opinion of the physician, physician assistant, or advanced practice registered nurse, COVID-19 vaccination is not in the best medical interest of the employee. The Department of Health shall adopt rules specifying circumstances that are considered an anticipated pregnancy, including, but not limited to, a maximum timeframe within which one anticipates pregnancy for the purpose of claiming an exemption under this paragraph.
2. Religious Exemption.
Employers must grant an exemption for religious reasons.
The statute with respect to this reads as follows:
To claim an exemption based on religious reasons, the employee must present to the employer an exemption statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief. In addition, employers are prohibited from inquiring into the veracity of the employee’s religious beliefs.
3.COVID-19 Immunity.
An employee may claim an exemption from an employer’s mandatory COVID-19 vaccine policy by presenting an exemption statement showing that the employee has immunity to COVID-19 documented by a valid laboratory test which can be either a diagnostic or antibody test, which has received full approval or emergency use approval by the FDA.
The statute with respect to this reads as follows:
To claim an exemption based on COVID-19 immunity, the employee must present to the employer an exemption statement demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee. The Department of Health shall adopt a standard for demonstrating competent medical evidence of such immunity.
4. Weekly Testing.
If an employee agrees to comply with regular testing by presenting an exemption statement, the testing must be provided at no cost to the employee. An employer may test the employee no more than weekly or upon evidence of COVID-19 symptoms using a diagnostic test that has received approval from the FDA. While the Florida Statute is silent on at-home tests, an at-home test that is approved by the FDA would likely meet the testing requirement.
The statute reads as follows:
To claim an exemption based on periodic testing, the employee must present to the employer an exemption statement indicating that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.
5. Wearing and Using PPE.
If an employee agrees to comply with an employer’s reasonable written requirement to use PPE in the presence of other employees or other persons, then the PPE must be provided by the employer. The Statute does not define PPE or differentiate between cloth face coverings and face masks.
The statute reads as follows:
To claim an exemption based on employer-provided personal protective equipment, the employee must present to the employer 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.
Note that the 5 exemptions under the new Florida law exceed those required under Federal EEO law. Under Federal EEO law, an employer only has to make exemptions to a mandatory COVID-19 vaccination policy for disability and sincerely held religious beliefs. The Florida statute adds exemptions for pregnancy and anticipated pregnancy, COVID-19 immunity, periodic testing and employer provided PPE. In addition, the Florida law does not allow inquiry into whether the religious belief is sincerely held.
Prior to the enactment of the new Florida statute, employers only had to grant exemptions due to disability or sincerely held religious beliefs. Now, each employer has the ability to give further exemptions, or to generally disregard employee COVID-19 issues, to the peril of their employees, customers, patients, and others.
For example, there is nothing under Florida law which requires a hospital or medical office that treats high-risk patients from requiring its employees to be vaccinated, although many medical offices and facilities were requiring this, subject to disability and sincerely held religious belief exemptions, while also attempting to place those unvaccinated employees into jobs where they would be less likely to be in contact with high-risk patients and others.
The sad truth is that although employees agree to use PPE, and intend to use PPE, when the boss is away, the mice take their masks off and play.
This puts employers in a terrible situation with reference to potential liability if an employee contracts COVID-19 and suffers significant injury or death because the employer did not police PPE rules. If an employer receives a completed exemption statement authorized by this statute, including the above mentioned exemptions, the employer must allow the employee to opt out of the employer’s COVID-19 vaccination mandate. It is also important to note that the Statute applies to all private employers regardless of size or number of employees.
Clearwater, Florida Employment attorney, Colleen Flynn has indicated as follows:
The Florida law grants employees a way to opt out of a COVID-19 vaccination policy. While before Florida employers only had to grant exemptions for disability or sincerely held religious beliefs, employers must now grant an exemption to a mandatory vaccine policy provided an employee will agree to periodic testing or to wearing PPE. However, OSHA and CMS have passed rules that are currently stayed in pending litigation that are different from the Florida law and thus, depending on what happens with those cases, Florida employers will find themselves navigating differing standards depending upon their size and type of business.
Colleen and I will be presenting a webinar to discuss this new rule and associated issues at 12:00-12:30 PM Eastern Standard Time on Monday, December 6, 2021. You can sign up for this free presentation and be on the list to receive a free replay link by emailing info@gassmanpa.com and putting the word “webinar” in the RE line. You may also register directly here.
Please stay safe.
Special thanks to Stetson law student, Samuel Craig, for his assistance in writing this blog post.