New Florida Law Gives Unvaccinated Employees Significant Rights

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In a surprise move for a state that has long given employers the freedom to do business with relatively few barriers, the Florida legislature and Governor DeSantis passed House Bill No. 1-B that would enforce a COVID-19 vaccination mandate for any private employer. prevents doing. For any full-time, part-time or contract employee without providing the personal exemption discussed below that allows an employee to opt out of such requirements.

In essence, this law entitles non-vaccinated workers to work without medical or religious reasons for not being vaccinated.

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Many Floridians are dying to know the details of the new law, while others will simply die of COVID-19 that they will contract in the workplace as a result.

The new law bars all government entities and educational institutions in the state from implementing mandatory workplace COVID-19 vaccine policies.

The law relating to private employers is relatively simple, and provides the following 5 personal exemptions for the mandatory COVID-19 vaccination policy:

1. Medical exemption.

Employers must waive the mandatory COVID-19 vaccination policy if an employee submits a statement signed by a physician, medical assistant or advanced registered nurse that states, in their opinion, “COVID-19 vaccination is in the best medical interest.” is not in. of employee. In addition, an employer must provide an exemption for pregnancy or anticipated pregnancy.

The law regarding this is as follows:

To claim an exemption based on medical reasons, including but not limited to pregnancy or anticipated pregnancy, the employee must submit an exemption statement dated and signed by a physician or a medical assistant who has a valid , have an active license. Chapter 458 or Chapter 459, or an advanced practice registered nurse who holds a valid, active license under Chapter 464 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 employee’s best medical interest. The Department of Health shall adopt rules specifying the circumstances which are considered to be anticipated pregnancy, including, but not limited to, the maximum time limit within which pregnancy is anticipated for the purpose of claiming exemption under this paragraph.

2. Religious exemption.

Employers must give exemptions for religious reasons.

The law regarding this is as follows:

To claim an exemption based on religious reasons, the employee must submit an exemption statement to the employer indicating that the employee denies COVID-19 vaccination because of a sincere religious belief. In addition, employers are prohibited from checking the veracity of an employee’s religious beliefs.

3.Covid-19 immunity.

An employee can claim an exemption from an employer’s mandatory COVID-19 vaccine policy by submitting an exemption statement indicating that the employee has immunity to COVID-19 documented by a valid laboratory test, which is either a clinical Or there could be the antibody test, which has received full approval or emergency use approval by the FDA.

The law regarding this is as follows:

To claim an exemption based on COVID-19 immunity, the employee must submit an exemption statement to the employer that demonstrates competent medical evidence that the employee is immune to COVID-19, based on a valid laboratory test performed on the employee. documented by the results. The Department of Health shall adopt a standard for demonstrating competent medical evidence of such immunity.

4. Weekly test.

If an employee agrees to comply with a routine test by submitting an exemption statement, the test should not be provided to the employee at any cost. An employer may test the employee more than weekly or on evidence of COVID-19 symptoms using a diagnostic test that has received approval from the FDA. While Florida statute is silent on home tests, a home test that is approved by the FDA will likely meet the testing requirement.

The statute reads as follows:

In order to claim exemption based on periodic testing, the employee must submit an exemption statement to the employer indicating that the employee has agreed to adhere to routine testing for the presence of COVID-19 at no cost to the employee .

5. Wearing and using PPE.

If an employee agrees to comply with an employer’s reasonable written requirement to use PPE in the presence of other employees or other persons, the PPE must be provided by the employer. The statute does not define PPE or differentiate between cloth face coverings and face masks.

The statute reads as follows:

To claim an exemption based on employer-provided personal protective equipment, the employee must submit an exemption statement to the employer indicating that the employee has met the employer’s reasonable written requirement to use the employer-provided personal protective equipment. agrees to comply when in the presence of other employee or other person.

Note that the 5 exemptions under the new Florida law are higher than the exemptions required under federal EEO law. Under federal EEO law, an employer is only required to waive a mandatory COVID-19 vaccination policy for persons with disabilities and sincere religious beliefs. Florida statute adds exemptions for pregnancy and anticipated pregnancy, COVID-19 immunity, periodic testing, and employer-provided PPE. In addition, Florida law does not allow an investigation into whether a religious belief is sincerely held.

Prior to the enactment of the new Florida statute, employers were only allowed to grant exemptions because of disability or sincere religious beliefs. Now, every employer has the ability to make further exemptions for the risk to its employees, customers, patients and others, or to disregard employee COVID-19 issues in general.

For example, there is nothing under Florida law that requires a hospital or medical office that treats high-risk patients to require its staff to vaccinate, although many medical offices and facilities did require it. , subject to disability and sincere religious belief exemptions, as well as attempting to place non-vaccinated workers in jobs where they would be less likely to be in contact with high-risk patients and others.

The sad truth is that although the employees agree to use PPE, and intend to use PPE, when the boss is away, the rats take off their masks and play.

This puts employers in a dire situation in terms of potential liability if an employee contracts COVID-19 and suffers significant injury or death because the employer has not followed police PPE rules. If an employer receives a full exemption statement authorized by this statute, including the above exemption, the employer must allow the employee to opt out of the employer’s COVID-19 vaccination mandate. It is also important to note that this statute applies to all private employers, regardless of size or number of employees.

Clearwater, Florida employment attorney, Colleen Flynn has indicated as follows:

Florida law provides a way for employees to opt out of a COVID-19 vaccination policy. Whereas before Florida employers only had to exempt for disability or outright religious beliefs, employers must now provide an exemption for a mandatory vaccine policy, provided an employee agrees to be tested or to wear PPE from time to time. However, OSHA and CMS have passed rules that are currently stalled in pending litigation that are different from Florida law and thus, depending on what happens with those cases, Florida employers can choose between their size and business. navigating to different parameters depending on the type.

Colleen and I will present a webinar on Monday, December 6, 2021 at 12:00-12:30 Eastern Standard Time, to discuss this new rule and related issues. You can sign up for this free presentation and join the list to receive a free replay link by emailing [email protected] and putting the word “webinar” in the RE line. You can also register directly Here,

Please be safe.

Special thanks to Stetson law student Samuel Craig for helping him write this blog post.

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