Following legal challenges facing OSHA’s temporary emergency standard requiring vaccinations, Florida passed a law prohibiting private employers from mandating COVID-19 vaccines unless multiple exemptions are offered to employees. The law, signed in a special legislative session on November 18, 2019, does not explicitly prohibit private employers from mandating vaccination, but rather places restrictive requirements on any private company that chooses to implement such a policy.
The law applies to all private employers in Florida, regardless of size. Specifically, the law provides that a private employer cannot impose a COVID-19 mandate without providing individual exemptions that allow an employee to “opt out” of this requirement for one of five reasons:
Medical reasons: An employer must allow an employee to retire for medical reasons, including pregnancy or anticipated pregnancy. In particular, the law does not require that the medical reason be a “handicap” or a “handicap” as defined in the Americans with Disabilities Act or the Florida Civil Rights Act. On the contrary, an employer must authorize an accommodation for a simple “medical reason”. To be eligible for the exemption, the employee must provide an exemption statement, signed by their physician, physician assistant or advanced practice registered nurse, stating that vaccination is not in the best interest of the employee. ’employee.
Religious Reasons: An employee can request an exemption for religious reasons if they simply submit a statement denying vaccination because of a sincere religious belief. Although not specifically defined, a “sincere” religious belief probably reflects the same requirements under Title VII.
COVID-19 immunity: An employee may withdraw from the vaccination warrant if he presents a statement of “competent medical evidence that the employee is immune to COVID-19, documented by the results of a valid laboratory test performed on the employee ”. The Florida Department of Health is responsible for adopting a standard for such statements.
Periodic Testing: An employee can request an exemption by explicitly agreeing to undergo regular testing for the presence of COVID-19. In particular, this exemption must be free for the employee. Like the COVID-19 immunity exemption, the Florida Department of Health is responsible for determining how often and what types of tests are allowed.
Employer-supplied PPE: Employees may also submit a declaration of exemption agreeing to comply with an employer’s “reasonable written requirement” to use employer-supplied personal protective equipment in the presence of other employees or people.
Upon receipt of an exemption statement from any employee, the Florida employer must allow the employee to opt out of the vaccine requirement. For violations of this law, employees can file complaints with the Legal Affairs Department of the Attorney General’s office. If the Department finds a violation, the employer will have the opportunity to remedy the non-compliance. The Ministry is also responsible for issuing rules further detailing the complaint and investigation process.
In particular, the law does not outright prohibit a vaccination warrant. Thus, Florida employers with vaccination mandates can still proceed as long as the various exemptions are available. However, for employers trying to tackle conflicting vaccine prescriptions in state and federal law, this law only adds to the puzzle. The supremacy clause of the United States Constitution provides that federal law prevails over state law whenever the two laws are in conflict. Thus, if the OSHA ETS survives judicial review, it is likely that Florida’s new law will conflict with OSHA’s mandate. If you have any questions about what to do in the meantime, contact a Stokes Wagner lawyer.
For a printable PDF of this article, 2021.11.15-FL.Vaccine.Mandat.Law.pdf.