Florida Gov. Ron DeSantis recently signed House Bill 1B into law, making it more difficult for employers in the state to mandate vaccinations for their employees. The law, which will remain in effect until June 1, 2023, states that an employer may not impose a COVID-19 vaccine requirement without providing five exemptions from the requirement. Those five exemptions are:
- An exemption based on medical reasons, including, but not limited to, pregnancy or anticipated pregnancy
To claim this exemption, the employee must present to the employer an exemption statement, dated and signed by a physician, physician assistant or advanced practice registered nurse who has examined the employee. The statement must provide that, in the professional opinion of the physician, physician assistant or advanced practice registered nurse, COVID-19 vaccination is not in the best medical interest of the employee.
- An exemption based on religious reasons
To claim this exemption, the employee must present to the employer an exemption statement indicating that the employee declines COVID-19 vaccination because of a sincerely held religious belief.
- An exemption based on COVID-19 immunity
To claim this exemption, the employee must present to the employer an exemption statement demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a valid laboratory test performed on the employee.
- An exemption based on periodic testing
To claim this exemption, the employee must present to the employer an exemption statement indicating that the employee agrees to comply with regular testing for the presence of COVID-19 at no cost to the employee.
- An exemption based on employer-provided personal protective equipment
To claim this exemption, the employee must present to the employer an exemption statement indicating that the employee agrees to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when in the presence of other employees or other persons.
Employers must use forms created by the Florida Department of Health, or substantially similar forms, for employees to submit exemption statements.
If an employer fails to comply with the law and terminates an employee based on a COVID-19 vaccine mandate, the employee may file a complaint with the Florida Department of Legal Affairs alleging that an exemption has not been offered or has been improperly applied or denied, resulting in the employee’s termination. If a violation is found, the employer must pay an administrative fine of up to $50,000 per violation. In determining the amount of the fine, the following factors will be considered:
- Whether the employer knowingly and willfully violated the law;
- Whether the employer has shown good faith in attempting to comply with the law;
- Whether the employer has taken action to correct the violation;
- Whether the employer has been previously assessed a fine for violating the law; and
- Any other mitigating or aggravating factor that fairness or due process requires.
The employer need not pay the fine, however, if it reinstates the terminated employee with back pay from the date the complaint was received by the Department of Legal Affairs.
Although the Florida law regarding vaccine mandates is constantly evolving, we recommend employers consult with counsel before adopting or implementing mandatory COVID-19 vaccinations policy.