BG Client Alert - COVID Confusion: New Florida Law Imposes Additional Exemption Requirements on Employers with Mandatory Vaccination Policies

On November 18, 2021, Florida passed a new law during a special legislative session that bans private employers in the state from implementing mandatory vaccination policies for their workforce unless they provide opportunities for their employees to request exemptions to such policies for: (1) medical reasons (including pregnancy or anticipated pregnancy); (2) sincerely held religious beliefs; (3) COVID-19 “immunity”;(4) the employee’s agreement to submit to periodic testing; or (5) the employee’s agreement to comply with an employer-provided Personal Protective Equipment (“PPE”) requirement.

Some of the exemptions required by the new Florida law, such as exemptions to mandatory vaccination requirements for employees with medical conditions or disabilities, or exemptions for employees with sincerely held religious beliefs, are at least partially consistent with longstanding guidance from the U.S. Equal Employment Opportunity Commission (EEOC) on the topic and the vaccination mandates that have already been issued by the federal government. Others, however, such as the requirement to provide exemptions for employees with COVID-19 “immunity” or for employees who agree to submit to periodic testing or comply with their employer’s personal protective equipment (PPE) policy, impose entirely new bases upon which employees in Florida may “opt out” of an employer’s vaccine mandate than those contemplated by current federal guidance.

Although there is very limited guidance available for Florida employers regarding these new exemption requirements at present, the Florida Department of Health has published model exemption forms for Florida employees to utilize if they wish to “choose to be exempt from private employer vaccine mandates” on these bases. Unfortunately, the model forms in many ways only add to the confusion and uncertainty facing Florida employers on this topic by providing language stating that an employee’s completion of the form “requires” the employer to “allow the employee to opt-out of the employer’s COVID-19 vaccination mandate.” Considering this language, it’s unclear whether an employer in Florida who receives an exemption request from an employee is now required to automatically grant such employee an exemption to its vaccine mandate, or whether employers may continue to engage in an interactive process with such employees as contemplated by the EEOC guidance and federal law to determine whether granting the requested exemption would pose an undue hardship on the company. It’s also unclear what sort of documentation employees must produce to establish that they have “immunity,” a term that has thus far been left undefined. These distinctions are important, as the new law also authorizes the Florida Attorney General (upon a complaint filed by an employee) to impose fines for violations up to $10,000 for private employers with less than 100 employees, or $50,000 for private employees with more than 100 employees.

This new legislation comes just one day after the U.S. Occupational Safety and Health Administration (OSHA) announced that it was suspending its enforcement of the Emergency Temporary Standard (ETS), requiring employers with 100 or more employees to mandate vaccines or conduct weekly COVID tests, pending the resolution of current legal challenges. To further complicate matters, many of the requirements of the ETS, the federal CMS Rule, and the Federal Contractor vaccine mandates set forth in Executive Order 14042, are in direct conflict with those in the new Florida law—leaving Florida employers who are subject to federal vaccine mandates caught in the middle between compliance with state or federal law. Although both the ETS and CMS contain language explicitly stating that their requirements preempt those set forth by state and local law, Florida is expected to initiate litigation to challenge those claims, creating significant ambiguity in the meantime.

This new law just the latest challenge facing employers in the ever-changing pandemic landscape, and additional guidance on its requirements is expected to be published within the coming weeks. Florida employers who have questions or concerns regarding compliance with this new law or the impact of its requirements on their existing or contemplated workplace vaccination policies should consult with experienced employment counsel. Bailey Glasser's Labor and Employment Practice group is closely monitoring this issue for updates and additional guidance.