By Katherine Van de Bogart, Esq., Van de Bogart Law, P.A.
On November 18, 2021, Governor Ron DeSantis signed legislation that creates new laws regarding COVID-19 vaccine mandates, including Florida Statute § 381.00317, entitled “Private employer COVID-19 vaccination mandates prohibited.”
Pursuant to a press release published by the Governor, the new laws “will protect Floridians from losing their jobs due to Covid-19 vaccine mandates and protect parents’ rights to make healthcare decisions for students.”[1] Since Fla. Stat. § 381.00317 involves a private employee’s rights in regard to COVID-19 vaccine mandates, it is important for private Florida businesses to ensure they are in compliance with the statute to avoid violations, and worse, costly fines. This article will summarize the newly enacted law, and how it could affect private businesses in Florida.
Fla. Stat. § 381.00317
- Private Employers must provide exemptions for COVID-19 Vaccine Mandates.
Florida Statute § 381.00317 provides that a private employer in Florida “may not impose a COVID-19 vaccination mandate for any full-time, part-time, or contract employees without providing individual exemptions that allow an employee to opt out of such requirement on the basis of medical reasons…. religious reasons, COVID-19 immunity; periodic testing; and the use of employer-provided personal protective equipment.”[2] The law also provides that a business may not impose a policy that prohibits an employee from choosing to receive the COVID-19 vaccination.[3]
Thus, while a Florida business may impose a vaccine mandate, it cannot do so without individual exemptions that permit employees to opt out based on the following grounds:
- medical reasons, including, but not limited to pregnancy or anticipated pregnancy;
- religious reasons;
- the employee has COVID-19 immunity;
- the employee gets periodically tested for COVID-19, or
- the employer provides the employee with personal protective gear.[4]
Pursuant to the list above, it should be noted that the statute does not specify how often an employee must get periodically tested in order to qualify for an exemption. Thus, in determining whether or not to grant an exemption, based on the grounds that the employee gets tested periodically, a private business should be reasonably prudent in making the decision.
- Procedure for an Employee to Opt Out
In order to claim an exemption, an employee must present an exemption statement to the employer setting forth the grounds on which he or she is claiming such exemption.[5] Each reason, whether it be medical, religious, COVID-19 immunity, periodic testing, or wearing personal protective gear, has its own set of requirements that the employee must satisfy in presenting the exemption statement.[6] Some grounds have more requirements than others. It should be noted that issues could arise challenging the validity of an employee’s exemption statement.
Upon receipt of a completed exemption statement, the employer must allow the employee to opt out of the employer’s COVID-19 vaccine mandate.[7] The statute does not expand on the meaning of a completed exemption statement. Thus, there may be factual issues that could arise regarding the validity of an exemption statement, and whether or not it was truly completed.
III. Employees may file an Administrative Complaint for the Employer’s Violation of the Statute.
Section 381.00317 does not give an employee a private right to sue his or her employer for violations of the statute. The only avenue is filing an administrative complaint. Accordingly, an employee working at a private business may submit allegations of violations of the law to the Department of Legal Affairs (the “DLA”) under the Attorney General. Grounds for violation are:
- the employer imposed a COVID-19 mandate and did not offer the employee an exemption;
- the employer improperly applied or denied the exemption; or
- the employer terminated the employee based on a COVID-19 vaccination mandate.[8]
- Failure of the Employer to Offer the Exemption or Improper Application or Denial of the Exemption:
If the employer did not offer the employee an exemption or improperly applied or denied the exemption, he or she may file a complaint with the DLA.[9] The statute states that “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.”[10]
It is worth mentioning that the statute does not require the DLA to investigate an employer’s complaint. Further, it does not provide how long the cure period is, so it would be in the best interest of the business to act in a timely manner in curing the violation in an effort to show good faith.
- Improper Termination of the Employee.
The statute further provides that if the employer terminates the employee based on a COVID-19 vaccination mandate, the employee may file a complaint and the DLA shall investigate.[11] In this case, the DLA must investigate the complaint. The investigation, at a minimum, must determine the following:
- whether the employer imposed a COVID-19 mandate;
- whether the employee submitted a proper exemption; and
- whether the employee was terminated as a result of the mandate.[12]
If the Attorney General finds that the employer improperly terminated the employee based on the aforementioned grounds, the Attorney General must impose administrative fines as follows:
- For a business with fewer than 100 employees, $10,000.00 per violation;
- For a business with 100 or more employees, $50,000.00 per violation.[13]
A key word in this section is that the Attorney General must impose the aforementioned fines. That means, if the DLA determines that a private business is in violation of the statute for wrongful termination of an employee, the Attorney General has no discretion as to whether a fine should or should not be imposed. The fines are mandatory when it is determined that the business has committed such violations.
In determining the amount of fines to impose, the Attorney General may consider the following factors in regards to the employee’s termination:
- Whether the employer knowingly and willfully violated the section;
- Whether the employer has shown good faith in attempting to comply with the section;
- Whether the employer has taken action to correct the violation;
- Whether the employer has previously been assessed a fine for violation of this section; or
- Any other factor that fairness or due process requires.[14]
- Federal Law Preemption
On November 5, 2021, the U.S. Department of Labor’s Occupational Safety and Health Administration (“OSHA”) published its COVID-19 Vaccination and Testing; Emergency Temporary Standard (“ETS”).[15] The ETS generally applies to all private employers with 100 or more employees.[16] OSHA’s ETS is in conflict with Fla. Stat. § 381.00317 as the ETS requires that businesses with over 100 employees “must develop, implement, and enforce a mandatory COVID-19 vaccination policy, with an exception for employers that instead adopt a policy requiring employees to either get vaccinated or elect to undergo regular COVID-19 testing and wear a face covering at work in lieu of vaccination.”[17]
Many states and private businesses thereafter challenged the ETS. On November 12, 2021, the United States Court of Appeals for the Fifth Circuit stayed the ETS, ordering OSHA not to enforce it until further court order.[18] When the cases were consolidated before the Sixth Circuit, the court lifted the stay and permitted OSHA to enforce the ETS.[19] Thereafter, the plaintiffs sought emergency relief from the Supreme Court, in which they argued that the ETS exceeds OSHA’s statutory authority.[20]
On January 13, 2022, the Supreme Court granted the plaintiffs’ request for emergency relief and ordered to stay the ETS pending disposition of the plaintiffs’ petitions for review in the Sixth Circuit.[21] In its opinion, the Supreme Court determined that the ETS is not authorized by the Occupational Safety and Health Act (the “Act”), as it tasks OSHA with “ensuring occupational safety” i.e., working conditions that are safe and healthful.[22] Thus, while the scope of OSHA’s authority is to regulate dangers in the workplace, it does not have the authority to regulate every aspect of a person’s life.[23] COVID-19, the Supreme Court held, is a universal issue- it occurs at home, in schools, at sporting events, and also the workplace.[24] The Supreme Court found that if the ETS was to stay in effect, it would “significantly expand OSHA’s regulatory authority without clear congressional authorization.”[25] Thus, the Supreme Court granted the plaintiffs’ request for emergency relief, finding that they were likely to succeed on the merits of their claim that OSHA lacked authority to impose the ETS, as OSHA, as an administrative agency, possesses “only the authority that Congress has provided”[26] Accordingly, as of the publishing of this article, the ETS is stayed by order of the Supreme Court.
- How should private Florida businesses act under the new Law?
It is important to note that private businesses in Florida are permitted, not required, to impose COVID-19 vaccination mandates. Thus, in order to ensure compliance, a private business could simply not implement a COVID-19 vaccine mandate. But, if a business chooses to have a COVID-19 vaccine mandate, it must be prepared to strictly follow the statutory requirements, as set forth above.
Further, certain parts of the statute are ambiguous, which could lead to confusion for a private business owner. As discussed above, there are various phrases or terms not defined, or scenarios that could arise that are not fully explained in the statute. Such ambiguities may lead to unintentional violations if a business is not properly prepared. However, Fla. Stat. § 381.00317 does direct three administrative agencies, the DLA, the Department of Health, and the Department of Economic Opportunity, to adopt rules in order to assist in enforcing the law, including specifying requirements for employee exemption statements.
Finally, while violations for failing to offer an exemption, or improperly applying or denying an exemption, appear only to result in a slap on the wrist for businesses who thereafter comply with the statute, private businesses that wrongfully terminate an employee over a COVID-19 vaccination mandate face serious fines of tens of thousands of dollars. Since the law is so new, there is little litigation out right now to compare cases. Accordingly, it would be in the best interest of the business to adhere to the statute, and if there are any concerns or doubts about its practices, contact an attorney for advice.
[1] flgov.com News Release, November 18, 2021.
[2] Fla. Stat.§ 381.00317(1)
[3] Fla. Stat.§ 381.00317(7)
[4] Fla. Stat.§ 381.00317(1)(a)-(e)
[5] Id.
[6] Id. See Fla. Stat. 381.00317 (1)(a)-(e).
[7] Fla. Stat.§ 381.00317(2)
[8] Fla. Stat.§ 381.00317(3); Fla. Stat.§ 381.00317(4)(a)
[9] Fla. Stat.§ 381.00317(3)
[10] Id.
[11] Fla. Stat.§ 381.00317(4)(a)
[12] Id.
[13] Id.
[14] Fla. Stat.§ 381.00317(4)(b)
[15] https://www.govinfo.gov/content/pkg/FR-2021-11-05/pdf/2021-23643.pdf
[16] Id.
[17] Id.
[18] https://www.osha.gov/coronavirus/ets2
[19] National Federation of Independent Business, Et Al. v. Department of Labor, Occupational Safety and Health Administration, Et Al., 595 U.S. 2 (2022)
[20] Id.
[21] Id. at 9.
[22] Id. at 2.
[23] Id. at 6-7.
[24] Id. at 6.
[25] Id. at 7.
[26] Id. at 5.