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On November 18, 2021, Florida Governor Ron DeSantis signed a bill into law that created Florida Statutes § 381.00317, 381.00319, 112.0441, and amended the currently existing section 1002.20. The bill provides a wide prohibition against vaccine mandates and requires exemptions that will impact how private employers, educational institutions, and elected or appointed officials navigate the COVID-19 vaccine with respect to their respective employees and students, etc. As discussed below, there are costly implications for violations which serve to generate revenue for the state budget. As a preface, an overarching implication of the prohibitions against COVID-19 vaccine mandates includes the allocation of $5,000,000 from Florida’s General Revenue Fund to the Department of Legal Affairs (“DLA”) for the purpose of investigating and taking legal action against employers and institutions that implement and maintain COVID-19 vaccine mandates which fail to adhere to the below requirements of the new statutes. The statutes are set to expire on June 1, 2023.
Under Fla. Stat. § 381.00317, private employers are now prohibited from imposing a COVID-19 vaccination mandate for any full-time, part-time, or contract employee without individual exemptions that allow employees to opt out on the basis of:
Each exemption category requires the employee to complete an exemption statement to be submitted to the employer. The Department of Health (“DOH”) is tasked with preparing emergency rules, including but not limited to, forms which serve as the exemption statement as well as forms to be used by physicians and employees in conjunction with the statement for each of the above, as well as developing relevant medical standards that employees must fulfill in order to be eligible. If the employer receives a completed and compliant exemption statement, the employer must allow the employee to opt out of the employer’s COVID-19 vaccination mandate.
Private employees may submit alleged violations of noncompliance with the statute to the DLA under the Attorney General (“AG”) which is charged with conducting investigations and taking legal action, if necessary. The AG must find at a minimum whether:
Potential fines cannot exceed $10,000 per violation for employers with fewer than 100 employees, and $50,000 per violation for employers more than 100 employees. The AG is prescribed a myriad of factors to consider in determining the amount of the fine to assess. These factors include:
§ 317.00317(4)(a)(2)(b)(1)-(5), Fla. Stat.
If the DLA finds evidence of a violation, it must provide the employer with its findings and allow an opportunity to cure same. However, the statute does not explicitly prescribe a length of time for this cure period. Therefore, it will be important for employers to act with reasonable diligence once on notice from the DLA. Within the cure period, employers can avoid a fine prior to a final order, if they reinstate a terminated employee and provide backpay from the date the DLA received the complaint. Termination based on a failure to comply with a COVID-19 vaccination mandate is not considered “misconduct” for the purpose of determining eligibility for reemployment assistance under Chapter 443.
The statute incentivizes employers to comply with the opt-out exemptions as they will risk a potential fine up to $10,000 or $50,000, respectively, or contemplate issuing payment during the cure period which may end up being even more costly depending on the employee’s rate of pay and the amount of the former employee’s backpay and reinstatement. It is important for employers to keep abreast of the DOH’s emergency rules and procedures to be enacted regarding the exemption statement submissions to ensure they are abiding by the standards set forth therein and to limit the potential for liability.
Public educational institutions are also subject to the COVID-19 vaccine mandate bans. This is consistent with addressing the litigation filed following Governor DeSantis’ July 30, 2021 Executive Order 21-175, Ensuring Parents’ Freedom to Choose regarding masks in school. Several counties disregarded the DOH’s emergency rules and implemented mask mandates with no parental opt-out.
The newly enacted Florida Statute, § 381.00319, creates a cause of action for parents, emancipated students, and students over 18 years old, to sue educational institutions, as defined by Fla. Stat. § 112.0441(1), for any COVID-19 vaccine mandate and seek injunctive relief. Prevailing parents or students are entitled to reasonable attorney’s fees and court costs, though the statute notably does not provide the converse for educational institutions or their representative in the event they prevail.
Under Fla. Stat. § 112.041, educational institutions or governmental entities, as defined respectively in Fla. Stat. § 112.0441(1)(b) and § 768.38, may not issue COVID-19 vaccination mandates for public employees. Each violation is subject to a fine not to exceed $5,000. Similar to private employees covered by § 381.00317, any terminated employees are eligible for reemployment assistance since their noncompliance is not considered “misconduct” for the purposes of eligibility under chapter 443.
The amendment to Fla. Stat § 1002.20 prohibits district school employees and elected or appointed officials from mandating students to wear face masks while creating a right of action for any violations for parents, emancipated minors, or 18-year-old students. Similar to Fla. Stat. § 381.00319, prevailing parents or students are entitled to reasonable attorney’s fees and court costs, with no reciprocal fee award for the educational institution or its representative as the prevailing party.
In addition, institutions may not provide disparate treatment to students or employees by preventing attendance at school or school sponsored activities, or from coming to work, based on exposure to COVID-19, so long as the student or employee is asymptomatic and has not received a positive COVID-19 test. There is a cause of action created for parents or students for disparate treatment related to attendance, but the same is not available for employees.
The Florida legislature has created several new opportunities for private employees, parents of students, or applicable students to bring complaints and assert potential causes of action against private employers and educational institutions or officials arising out of their implementation of a COVID-19 vaccination mandate that does not comply with the exemptions outlined under the new statutes. The State will investigate any reported violations through the AG and the DLA which has the authority to impose varying and significant fines per violation. Florida employers should closely monitor the action taken by the Florida DOH which is charged with establishing the necessary standards and rules for each of the five (5) statutorily prescribed opt-out exemptions that employers must incorporate and abide by in their existing or future COVID-19 vaccination policies.
Please feel free to reach out to FMG’s Florida Labor and Employment Team for any assistance in understanding and complying with these new laws.