Tampa, Fla. (November 24, 2021) - Earlier this month, OSHA issued emergency workplace safety rules requiring businesses with 100 or more employees to ensure their employees are vaccinated or submit to regular COVID-19 testing. In response, on November 18, 2021, Florida Governor Ron DeSantis signed into law four bills passed during a special session of the Florida legislature, which limit employers' ability to impose COVID-19 vaccine mandates and prohibit school districts from adopting a mask mandate or requiring asymptomatic students that have been exposed to COVID-19 to quarantine and require Florida to set up its own OSHA program.
Employers in Florida are now prohibited from requiring their employees to obtain a COVID-19 vaccine without allowing them an opportunity to claim one of several new exemptions. Frankly, some of the exemptions are so broad anyone can "opt out." These include: (a) medical exemption; (b) pregnancy or expectant pregnancy; (c) religious exemption (which includes all seriously held religious, ethical, and moral beliefs); (d) showing that they have recently recovered from a COVID-19 infection; (e) undergoing periodic testing at their employer's expense OR (f) agreeing to wear a mask. Employers must cover the costs of testing and PPE for employees that select those options. Florida was even kind enough to provide forms for each of these purposes, linked below:
- Medical Exemption from COVID-19 Vaccination
- Religious Exemption from COVID-19 Vaccination
- Exemption from COVID-19 Vaccination Based on COVID-19 Immunity
- Exemption from COVID-19 Vaccination Based on Periodic Testing
- Exemption from COVID-19 Vaccination Based on Employer-Provided Personal Protective Equipment
If an employer does not accept an employee's properly completed exemption form and terminates an employee for refusing to obtain a vaccine, the employer faces significant fines. Small businesses (defined as those with 99 employees or less) can be fined $10,000 per violation. Businesses with more than 100 employees will face a $50,000 per violation fine. Additionally, Florida laws prohibit retaliatory actions against employees who object to or refuse to participate in conduct of their employer that they believe is a violation of a law, rule, or regulation.
The federal government is already claiming its rules and regulations pre-empt state law. However, this is not certain. Preemption must be proven in court. The federal mandates are being challenged in various states and their status is uncertain. Finally, preemption is only a benefit if there is a conflict between the rules and laws. For example, Florida's requirement that the employer pay for testing will likely not be preempted.
Employers who face competing and contradictory instructions from the federal and state governments will need to carefully review their options and risks when developing COVID-19 response programs. For more information on these new laws, contact the author or editor of this alert or visit our COVID-19 Response Resource Center to find an attorney in your area.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.