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23 Nov

November 2021: Florida Bans Vaccine Mandate

Posted at

6:30pm

in

Update Applicable to:
All employers in Florida.

What happened?
On November 18, 2021, the Florida legislature passed House Bill 1-B (HB 1-B), banning private employers from mandating COVID-19 vaccines unless several exemptions are offered to employees.

What are the details?
Effective immediately, an employer must allow employees to opt-out of the vaccine mandate if the employee makes a statement for refusing the vaccine for the following reasons below:

  • Medical Reasons.
    This includes reasons of pregnancy or anticipated pregnancy. To receive a medical exemption, an employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee. While not addressed in the legislation, we suspect that this exemption will function similarly to those provided for disabilities under the Americans with Disabilities Act (ADA).
  • Religious Reasons.
    An employee must present a statement that they decline the vaccine because of a “sincerely held religious belief.” Although that term is undefined, it likely refers to sincerely held religious beliefs as understood under federal law.
  • COVID-19 “Immunity.”
    An employee must show “competent medical evidence” that they have immunity to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not state what “immunity” is but directs the Department of Health to establish a standard for determining that immunity.
  • Periodic Testing.
    An employee must provide a statement indicating that they will comply with the employer’s requirement to submit to regular testing. Although “regular testing” is not defined, the law directs the Department of Health to adopt emergency rules specifying requirements for frequency of testing. Importantly, any testing must be at no cost to the employee.
  • Agreement to use Personal Protective Equipment (PPE).
    An employee must present a statement that they agree to comply with the employer’s reasonable written requirement to use employer-provided personal protective equipment when around others. “Personal protective equipment” is not defined. It is unclear whether the use of the term would implicate Occupational Safety and Health Administration (OSHA) regulations or Centers for Disease Control (CDC) guidance on “personal protective equipment.”

This law will be enforced by the Department of Legal Affairs in the Attorney General’s office. Employees can file complaints that an exemption was not offered or was improperly applied or denied, which will then be investigated.

If the Department finds that an employee was improperly terminated and the employer does not restore the employee to their position with back pay, then the Department may fine the employer up to $50,000, depending on employer size and other factors. Employees who are wrongfully terminated may also be entitled to unemployment benefits.

For more information, please see the links below:

House Bill (HB 1-B)

Article 1Article 2

What do employers need to do?
Employers should review the links provided above and make adjustments to their COVID-19 vaccination policies.

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