As you’ve been hearing, Florida Gov. Ron DeSantis signed four bills targeting Covid-19 measures including vaccine mandates for employers into law Thursday, November 18, 2021.

Ward Damon’s Employment Law Practice Team has outlined exactly what this means to private employers in Florida. The new law does not necessarily eliminate the ability of a private employer in Florida to impose a vaccine mandate policy for its employees and applicants. However, it does expand the ability of employees to opt or exempt out of an employer’s vaccine mandate.

To this end, a private employer in Florida must provide individual exemptions that allow an employee to opt-out if they provide a valid exemption statement for the following reasons:

• Medical Reasons, Pregnancy or anticipated pregnancy:  A medical exemption includes, but is not limited to, pregnancy or anticipated pregnancy, where the employee must present an exemption statement, dated and signed by a physician, physician assistant, or an advanced practice registered nurse, who has actually examined the employee. The statement must state that the COVID-19 vaccination is not in the best medical interest of the employee.
• Religious reasons: The employee must indicate he/she declines COVID-19 vaccination because of a sincerely held religious belief.
• COVID-19 immunity:  The employee must demonstrate competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test. The Florida Department of Health is tasked with adopting a standard for demonstrating competent medical evidence of such immunity.
• Periodic testing:  The employee must indicate that he/she agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee. This is different than the federal law, which does not require the employer to pay for testing. However, at least for the moment, the necessary testing is offered throughout the State free of charge.

The use of employer provided protective equipment:  The employee must indicate he/she will comply with reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons. 

Florida’s Department of Health will also adopt emergency rules to specify requirements for the frequency and methods of testing which may be used by employers, to establish standards for competent medical evidence that the employee has immunity to COVID-19, to specify circumstances that are considered an anticipated pregnancy, and to create the following:

1. Form for a physician, a physician assistant, or an advanced practice registered nurse to document an exemption based on medical reasons, including, but not limited to, pregnancy or anticipated pregnancy.
2. Form for use by an employee to document an exemption based on religious reasons.
3. Form for use by an employee to document an exemption based on COVID immunity. Form must include the laboratory criteria for proof of immunity for the virus that causes COVID.
4. Form for use by an employee to document an exemption based on periodic testing. Such form must include the required frequency of testing and acceptable tests that may be used.
5. Form for use by an employee to document an exemption based on employer-provided personal protective equipment.

In order to take advantage of the statute’s exemptions, employees will have to use these forms that will be (but are not yet) created by the Department of Health.  

Employers that violate the statute face fines of either up to $10,000 per violation (employers with 100 or less employees) or up to $50,000 per violation (employers with 100 or more employees). However, the Attorney General may not impose a fine on an employer that reinstates, prior to the issuance of a final order, a terminated employee with back pay to the date that the complaint was received by the Department of Legal Affairs.

The new law does not seem to create a private cause of action for an aggrieved employee. Rather, the law will be enforced by Florida’s Attorney General. Employees must bring their claims to Florida's Department of Legal Affairs, which must investigate. As stated above, employers will be provided the opportunity to cure violations before the imposition of fines.

For those of you who have adopted policies of not hiring unvaccinated individuals, for now, and unless applicants are specifically addressed in the future, we recommend adopting these same exemptions for applicants. 

Additional questions? Our team at Ward Damon is here to help and continues to monitor changes to this recently released law. 

If you have any Employment & Labor questions related to the COVID-19 crisis, let our Ward Damon Employment & Labor Law team help. Please call us at 561-842-3000, or contact members of the Firm’s Labor and Employment Practice Group directly: I. Jeffrey Pheterson, Bari Goldstein and Kenneth Rehns.