Covid-19HRHR Update

New Florida Laws Restricting COVID-19 Vaccine Mandates

By December 16, 2021 No Comments

On November 18, 2021, Gov. Ron DeSantis signed HB 1-B: Vaccine Mandates into law, limiting the ability of private employers to mandate COVID-19 vaccination. The law took effect immediately and covers all private employers in Florida regardless of size. Private employers who implement a vaccine mandate must provide employees the following exemptions to said mandate:

  1. Medical Exemption: employee provides signed statement from physician or physician assistant.
  2. Religious Exemption: employee provides statement of sincerely held religious belief, which may include a sincerely held moral or ethical belief.
  3. COVID-19 Immunity Exemption: employee provides statement of immunity and provides proof of COVID-19 immunity with test results.
  4. Testing Exemption: employee provides statement agreeing to submit to regular testing (not to occur more than weekly) as required by the employer.
  5. Personal Protective Equipment (PPE) Exemption: employee provides statement agreeing to use PPE as required by employer’s policy.

If an employer receives a statement from an employee (as described above), they must allow the employee to opt-out of the vaccine mandate. The Department of Health created template forms employers may use for each of the exemptions.  

The Center for Medicare & Medicaid Services (CMS)  and Executive Order 14042 Federal Contractor vaccine mandate requirements, which both require that covered staff be vaccinated and only allow for exemptions for medical conditions (ADA) and sincerely held religious beliefs (Title VII), should preempt this Florida law to the extent the laws directly conflict. The CMS rule explicitly provides that it preempts state and local laws. The CMS rule applies to healthcare services, support or suppliers that are regulated under CMS standards, and affects only Medicare- and Medicaid-certified providers and suppliers. It does not directly apply to other healthcare entities that are not regulated by CMS. 

For now, Florida employers not covered by the CMS Rule or Executive Order 14042 for federal contractors only have this new Florida law with which to comply if they decide to implement a vaccine mandate. If OSHA’s ETS survives in the courts, the OSHA ETS will preempt this new Florida law if the two conflict.

Florida Law Comparison to the Federal OSHA Emergency Temporary Standard

Requirement Florida Federal ETS
Scope Private employers in Florida regardless of size. Exception: Employer falls under another standard (Federal contractor/ subcontractor guidelines, CMS rule)   All Employers with 100+ employees.   Exception: Employer falls under another standard (Federal contractor/ subcontractor guidelines, CMS rule)  
Vaccination Mandate Can mandate that employees be fully vaccinated against COVID-19, but must allow an employee to opt out under one of the following exemptions if they provide employer with the required form: MedicalReligiousCOVID-19 ImmunityPeriodic Testing Use of Personal Protective Equipment (PPE) Must mandate that covered employees be fully vaccinated against COVID-19.   OR   Allow covered employees to choose between being fully vaccinated or being tested weekly while also wearing a face covering.   (Reasonable accommodations must be provided for medical and religious exemptions as required under federal and state antidiscrimination laws)
Pay for Costs Associated with Vaccination No requirement Up to 4 hours of paid time off for each vaccine dose (does not apply to booster) if vaccine is received during work hours.   Reasonable amount of paid time off for side effects (up to 2 days). Does not apply to booster shots. Can require employees to use accrued paid sick time or accrued general paid time off to recover.
Pay for Costs Associated with Testing Employer must pay for costs associated with testing and time spent testing if employee submits completed form for the periodic testing exemption from a vaccine mandate.   To err on the side of caution under anti-discrimination laws, it is recommended that employers pay for the costs associated with testing and time to get tested if employee requests exclusion from mandate under the medical or religious exemption and employer requires employee to get tested.   *** Under Florida law, private employers are not required to have employees tested. Does not require employers to pay for testing, however, if testing is provided as an accommodation (for medical or religious reasons), then employer is responsible for costs associated with tests and time to get tested.   It is unclear if an employer is required to pay for the time to get tested (waiting on clarification from Department of Labor). Recommended to err on the side of caution and pay employees for the time.    
Cost of PPE/Face Covering Employers are required to provide PPE to employees who submit form for PPE exemption. Does not require employers to provide face coverings, but it is recommended that employers do so, especially if employee is wearing face covering as part of an accommodation.

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