On December 3, 2021, the Florida Department of Legal Affairs of the state attorney general’s office issued an emergency rule establishing the procedure for private employer vaccination mandate complaints under section 381.00317(3) and (4), Florida Statutes. The rule sets forth the complaint procedure, beginning with providing further clarification regarding key terms in the statute. The department also published a list of answers to frequently asked questions (FAQs) that provides further information for employers. The Florida Department of Health also issued a set of forms and rules

What is a COVID-19 vaccination mandate?

Section 381.00317(1), Florida Statutes, states a “private employer may not impose a COVID-19 vaccination mandate …. without providing individual exemptions that allow an employee to opt out of such requirement” for five separate reasons. Section (2) states that if an employee has submitted an exemption statement under one of the exemptions, “the employer must allow the employee to opt out of the employer’s COVID-19 vaccination mandate.” Section (4) prohibits an employer from discharging an employee based on a vaccination mandate and termination includes the functional equivalent of a termination (which we explain in further detail below).

Section (3) allows an employee to file a complaint with the Department of Legal Affairs “alleging that an exemption has not been offered or has been improperly applied or denied violation of this section.”

Neither the stature nor the emergency rule define the term “vaccination mandate,” which raises the question of whether an employer may require vaccination for a limited purpose, such as attending a company holiday party or annual meeting, rather than imposing a mandate as a general term and condition of employment. If the event is not mandatory and employees will not be discharged—or suffer the functional equivalent of a discharge—for failing to attend then would a limited purpose vaccination mandate be lawful?

Based on the intent of the statute, the department could consider any mandate including any limited purpose mandate, as prohibited by the statute. An employee might argue that a limited purpose mandate still deprives him or her of valuable networking and business opportunities if no alternatives (such as remote participation) are offered. Governor Ron DeSantis’s statements surrounding vaccine mandates has focused on protecting employment: “Nobody should lose their jobs because of these COVID jabs.” However, it is not clear how this issue would be resolved by the department.

Which employees are covered under the statute? What about applicants or independent contractors?

Under 2ER21-1(1)(b), an “employee” includes any person getting paid to perform “any work or service occurring within [the] state.”

This means the source of the worker’s remuneration does not matter. Instead, the relevant factor is where the individual is working. Thus, employers can determine coverage by where the employee is working, not where the employer is located.

This also means that applicants are not covered—at least according to the plain terms of the statute and the text of the rule. But, given the broad coverage intended by the statute, it is possible the department may try to take a broader view during an investigation of a complaint. Employers may want to consider including applicants in the possible scope of coverage even if the statute and rule do not include specific references to “applicants.”

The definition of “employer” under 2ER21-1(1)(b), does not cover “an independent contractors, a volunteer, or someone who serves in a private nonprofit agency without compensation other than expenses.”

The rule sets a high bar for independent contractor exclusion. A person may qualify as an “independent contractor” under the rule only if he or she can meet one of two tests. Under the first test, the rule requires the person meet four or more of the following criteria:

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

2. holds or has applied for a federal employer identification number;

3. 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;

4. 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;

5. 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

6. 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, the rule requires a showing of any of the following:

1. 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;

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

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

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

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

6. The person has continuing or recurring business liabilities or obligations;

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

These requirements seem to be clearly intended to prevent employers from trying to misclassify an individual employee as a “1099 employee” to avoid the statute’s requirements.

Which employers are covered? Is there a minimum number of employees for coverage?

The rule, under 2ER21-1(1)(d), defines a “private employer” as a business that “employs employees within this state.” This adds further support for the conclusion that the statue does not cover applicants and emphasizes that even if the employer is elsewhere (for example, if the company’s corporate headquarters is out of state), employees working in Florida are covered.

There is no minimum number of employees an employer must have for coverage.

What is the “functional equivalent of termination” under the statute?

Under 2ER21-1(1)(e), the rule provides that the phrase “[f]unctional equivalent of termination” means an employee has “resigned under duress” or the employer “made working conditions so difficult or intolerable that a reasonable person in the employee’s position would feel compelled to resign.”

The Department of Legal Affairs also published a set of FAQs. One answer to a question about prohibited acts explains that if an “employer has taken adverse action against you that is the functional equivalent to a discharge, the employer could be fined.”

This means that employers may want to consider actions that fall short of a termination but that adversely affect an employee’s position with the company as possibly covered by the statute. This could include vaccine mandates that are not broadly required of employees but that may be required for employees to attend company events.How does the complaint procedure work?

Under 2ER21-1(2), the rule establishes an administrative complaint/investigation process much like filing a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC) or Florida Commission on Human Relations (FCHR).

If the Department of Legal Affairs concludes there is probable cause to believe a violation of the statute has occurred, it must file a formal administrative complaint, after which an evidentiary hearing will be held before an administrative law judge (ALJ) from the Division of Administrative Hearings (DOAH). The ALJ will then issue a recommended order to the department, and the department will then review and issue a final order, including any penalty to be imposed, which will constitute final agency action under Florida law (i.e., it is judicially reviewable).

The Department of Legal Affairs also has the discretion to pursue informal means of disposing of the complaint, including conciliation or consent orders.

In short, the processing and adjudication of complaints under this rule will be a longer process than many people probably anticipated. This also suggests there will be multiple opportunities to take corrective action before any fine is imposed.

What about the Florida Department of Health’s emergency rules?

On November 18, 2021, the Department of Health issued two one-page emergency rules: (1) 64ER21-17 establishes standards and exemption forms for private employer COVID-19 vaccination mandates; and (2) 64ER21-18 establishes penalties for public employer mandates. Employers must use either the forms provided by the Department of Health or “substantially similar” forms. One option for employers to consider might be developing one form combining all five exemptions that employers must offer if mandating vaccines.

The rules define “anticipated pregnancy” as when an employee “intends to become pregnant” and is “of child-bearing age.” As with an exemption request based on religious reasons, an employer must accept the employee’s representations without inquiring into their veracity. Similarly, an employer must accept an appropriate health care provider’s professional opinion that “COVID-19 vaccination is not in the best medical interest of the employee.”

To claim an exemption based on COVID-19 immunity, an employee must present proof of a positive laboratory result from a diagnostic test or antibody test that has received full approval by, or emergency use authorization from, the U.S. Food and Drug Administration. The rules are silent as to how long such immunity might last. The same type of test is required for the periodic testing exemption. An employer must pay for the cost of periodic testing and cannot test more than weekly or upon evidence of COVID-19 symptoms. The rules offer no new details regarding the personal protective equipment (PPE) exemption.

For public employers, the Department of Health must issue a notice of violation with hearing rights before final agency action. Each violation will result in a $5,000 fine per individual and separate violation.

What about federal preemption?

President Joe Biden’s Executive Order (EO) 14042, which mandates vaccination for covered federal contractors and subcontractors, has been stayed in Kentucky, Ohio, and Tennessee. Although Florida has filed a separate lawsuit challenging the EO, the judge has not yet ruled upon Florida’s motion for a preliminary injunction to prevent enforcement of the mandate.

Because the Occupational Safety and Health Administration’s emergency temporary standard (ETS) mandating vaccination or testing and face coverings and the Centers for Medicare and Medicaid Services’ interim final rule entitled “Medicare and Medicaid Programs; Omnibus COVID-19 Health Care Staff Vaccination” have both been temporarily stayed nationwide, there is no preemption unless the stays are lifted.