On November 18, 2021, Florida Governor DeSantis signed House Bill 1B into law, imposing a series of requirements on employers in the Sunshine State who seek to impose COVID-19 vaccination mandates on their workforce. The statute itself left employers grappling with many questions as to the scope of the law, definitions of key terms, and methods of enforcement. 

Some of these questions were answered on December 2, 2021, when the Florida Department of Legal Affairs issued Emergency Rule 2ER21-1 (the “Emergency Rule”) defining various terms used in the Florida law and establishing the complaint procedure for challenges to private employer vaccine mandates under sections 381.00317(3) and (4), Florida Statutes. The Department of Legal Affairs also provided a list of answers to 11 corresponding Frequently Asked Questions (FAQs). These FAQs and Emergency Rule come at a time when courts are still deciding the legal challenges brought against the various COVID-19 mandates issued by the federal government, further contributing to the (seemingly) ever-changing COVID-19 vaccine mandate landscape.

Emergency Rule Definitions

Specifically in the Emergency Rule, the Department of Legal Affairs defined the following five terms: “department,” “employee,” “independent contractor,” “private employer,” and “functional equivalent of termination.”

An “employee” under this Emergency Rule is defined as "any person who receives remuneration from a private employer for the performance of any work or service occurring within this state . . .” Pointedly, the Emergency Rule specifies that an “employee” is not an “independent contractor,” “volunteer,” or “or someone who serves in a private nonprofit agency without compensation other than expenses.”

Further, from the plain language of this definition, it appears that a person must perform work or services in the state of Florida in order to be considered an “employee,” and that the location of the employer is irrelevant. This definition also suggests that applicants are not considered “employees” and therefore not covered by the Florida law, as an applicant does not “perform[] any work or service.”

In turn, an “independent contractor”—who is exempted from the Florida law—is defined as someone who satisfies four of the following six criteria:

• maintains a separate business with his or her own work facility, truck, equipment, materials, or similar accommodations apart from the private employer;

• holds or has applied for a federal employer identification number;

• receives compensation for services rendered or work performed and such compensation is paid to a business, other than the private employer, rather than to an individual;

• holds one or more bank accounts in the name of a business entity, other than the private employer for purposes of paying business expenses or other expenses related to services rendered or work performed for compensation;

• performs work or is able to perform work for any entity in addition to or besides the private employer at his or her own election without the necessity of completing an employment application or process; or

• receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

Alternatively, someone can be considered an “independent contractor” if any of the following conditions are satisfied:

• The person performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work;

• The person incurs the principal expenses related to the service or work that he or she performs or agrees to perform;

• The person is responsible for the satisfactory completion of the work or services that he or she performs or agrees to perform;

• The person receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis;

• The person may realize a profit or suffer a loss in connection with performing work or services;

• The person has continuing or recurring business liabilities or obligations; or

• The success or failure of the person’s business depends on the relationship of business receipts to expenditures.

The definition of “independent contractor” in the Emergency Rule is more stringent than that used to determine whether someone is an “independent contractor” in other contexts, including for example, federal tax purposes.

The definition of “employer” in the Emergency Rule also deviates from other statutory definitions of “employer,” as this definition does not include an employee threshold, nor does it require the employer to be located in the state of Florida. This definition only requires the legal entity to “employ[] employees within this state.” As clarified by the FAQs, the size of the employer only matters when determining the fine for violating the Florida law.

Finally, the “department” is defined as “the Department of Legal Affairs,” and “functional equivalent of termination” is defined as occurring in two scenarios: (i) when the employee resigns under duress; and (ii) when “the employer, through its actions, made working conditions so difficult or intolerable that a reasonable person in the employee’s position would feel compelled to resign.” The FAQs provide some additional clarity to this definition by noting that employers can also be fined under the Florida law if the employer “has taken adverse action against [an employee] that is the functional equivalent to a discharge.”

Complaint Process Outlined in the Emergency Rules

The Emergency Rule also establishes an administrative complaint and investigation process. In short, any complainant must file a legally sufficient complaint with the Department of Legal Affairs (in accordance with certain form and submission requirements). The Department of Legal Affairs will then investigate the complaint before submitting an investigative report to the Attorney General’s designee. If the Department of Legal Affairs concludes there is probable cause to determine that the Florida law was violated, it will need to file a formal administrative complaint, and present its case at an evidentiary hearing before an administrative law judge. The administrative law judge will then issue a recommended order to the Department of Legal Affairs, which will then issue a final order based on those recommendations. Throughout this process, the Department of Legal Affairs also has the ability to impose penalties through consent orders. A more detailed discussion of the complaint and investigation process is discussed in the Emergency Rule.

Conclusion

Although the Emergency Rule and FAQs provide additional guidance to the Florida law, there are still gaps and conflicts between the Florida law and the federal regulations—particularly in light of the recent court rulings on legal challenges to the federal guidance. As Florida employers consider vaccine mandates and policies and take steps to comply with the various laws, regulations, and ordinances, we recommend monitoring legal decisions and the issuance of additional guidance to determine how best to comply. Foley has created a multidisciplinary and multijurisdictional team that has prepared a wealth of topical client resources and is prepared to help clients meet the legal and business challenges created by Executive Order 14042, the CMS vaccine mandate, the OSHA ETS, and state and local ordinances.