On November 18, 2021, Florida Governor Ron DeSantis signed new legislation prohibiting private employer COVID-19 vaccine mandates, requiring employers to recognize new exemptions to receiving a COVID-19 vaccine, changing how the cost of PPE and COVID-19 testing is shared between businesses and employees, and fining any Florida businesses who violate the new law.
Regardless of your feelings on COVID-19 vaccine mandates, Florida’s new legislation creates huge uncertainty for businesses subject to Executive Order 14042, also known as the Federal Contractor Vaccine Mandate, the CMS Vaccination Mandate, or OSHA’s new ETS (which is still stayed pending court review). All three of these federal mandates are now in direct conflict with Florida law, and Florida businesses subject to any of the above now face potential fines and regulatory enforcement no matter which way they turn.
Florida’s New COVID-19 Legislation
The three federal mandates allow only two exemptions to mandatory COVID-19 vaccinations—the first for a sincerely held religious belief, and the second for a documented medical condition. Florida’s new law essentially prohibits any enforceable vaccine mandate by requiring Florida employers to recognize a multitude of new exemptions, all of which are not recognized by the federal mandates. Those new exemptions include:
- Anticipated Pregnancy; and
- COVID-19 Immunity (by documenting a previous infection).
The new legislation also allows for employees to opt for periodic testing for COVID-19 or the use of PPE equipment in lieu of vaccination. The cost of any testing or PPE as a result of an employee’s reluctance to be vaccinated must be covered by the employer. Florida businesses who do not comply with the new law can face fines between $10,000 and $50,000, depending upon the size of the business. The law creates a new reporting system to monitor compliance, and allocates a significant chunk of revenue to the state attorney general’s office for enforcement.
Florida Employers Caught In Between a Rock and a Hard Place
While the federal mandates technically take precedent over any state law, it is anticipated that Florida will be enforcing its new COVID-19 legislation regardless of whether an employer is also covered by a federal mandate. How that conflict will ultimately play out in court remains to be seen. Until that conflict is resolved, Florida employers covered by a federal mandate are in a terrible position, and risk consequences from either the state or federal agencies depending upon which law they choose to follow.
Unfortunately, until there is some judicial guidance on whether businesses must follow state law or federal mandates, there is no clear path forward to avoid potential penalties. Florida employers who are currently subject to a federal COVID-19 vaccine mandate should consult with an experienced employment lawyer for assistance in navigating these turbulent waters and crafting a policy that minimizes the risk of consequences such as fines and loss of contracts.Joshua B. Loren and Bruce E. Loren of Loren & Kean Law are based in Palm Beach Gardens and Ft. Lauderdale. Loren & Kean Law is a boutique law firm concentrating in construction law and employment law. Mr. Joshua Loren focuses his practice on construction, labor and employment law, only representing the interests of employers and business owners. The firm represents businesses in a wide range of disputes, including OSHA investigations and citation contests, DOL investigations, discrimination claims, and state and federal wage litigation. They can be reached at [email protected] or [email protected] or 561-615-5701
Partner, Loren & Kean Law