Florida Law Limits Private Employers’ Ability to Mandate Vaccines

A new Florida law signed into effect on Nov. 18 prohibits private employers from imposing a COVID-19 vaccination mandate without providing individual exemptions that allow an employee to opt out on the basis of the following:

1. Medical reasons
2. Religious reasons
3. COVID-19 immunity
4. Periodic testing (at no cost to the employee)
5. Use of employer-provided personal protective equipment (PPE)

To opt out of a vaccine mandate, employers are required to use forms adopted by the Florida Department of Health, or substantially similar forms, for employees to submit exemption statements as to any of the above-referenced grounds to seek an exemption. If an employer receives a completed exemption statement, the employer must allow the employee to opt out of the employer’s COVID-19 vaccination mandate. The law is set to expire on June 1, 2023.

To claim any of the above-referenced exemptions, the employee statement must provide the following:

Medical Reasons 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, stating the COVID-19 vaccination is not in the best medical interest of the employee.

Religious Reasons Exemption

The employee must present to the employer an exemption statement indicating that the employee declines the COVID-19 vaccination because of a sincerely held religious belief. 

Immunity 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.

Testing 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.

PPE 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.

Enforcement

The Florida Department of Legal Affairs (“Department”) may investigate employee complaints alleging that the employer failed to properly provide for these exemptions. If the Department investigates and finds that the exemption was not offered or was improperly applied or denied, the Department must notify the employer of its determination and allow the employer the opportunity to cure the noncompliance.

If the Florida Attorney General finds that an employee has been improperly terminated, the Attorney General must impose an administrative fine not to exceed:

• For an employer with fewer than 100 employees, $10,000 per violation
• For an employer with 100 or more employees, $50,000 per violation

In determining the amount of fine to be levied for a violation, the Attorney General may consider any of the following factors:

1. Whether the employer knowingly and willfully violated the law
2. Whether the employer has shown good faith in attempting to comply with the law
3. Whether the employer has taken action to correct the violation
4. Whether the employer has previously been assessed a fine for violating the law
5. Any other mitigating or aggravating factor that fairness or due process requires

Please contact Erin Malone or any member of Phelps’ Labor and Employment team if you have questions or need compliance advice and guidance.