Governor Ron DeSantis recently signed HB 1-B, Ch. 2021-272, Laws of Fla. (the “Vaccination Exemption Law”), which prohibits every private employer from issuing COVID-19 vaccination mandates for its Florida employees without allowing employees to opt out for five specific exemptions: (i) medical reasons, including pregnancy or expectation of pregnancy, as determined by a physician, advanced practice registered nurse, or physician assistant; (ii) religious reasons, based on a sincerely held belief; (iii) COVID-19 immunity, based on prior COVID-19 infection, as documented by a lab test; (iv) periodic testing, agreed to by the employee and at no cost to the employee; or (v) based on compliant use of employer-provided personal protective equipment (“PPE”), agreed to by the employee.  Employers that receive a “completed exemption statement” must allow the requesting employee to “opt out” of the employer’s vaccination requirements.[1]  Employers will be found to have violated the Vaccination Exemption Law by failing to provide for exemptions in their COVID-19 vaccination mandate and terminating the employee—which includes “the functional equivalent of termination,” as defined below.

On December 2, 2021, the Florida Department of Legal Affairs issued a Notice of Emergency Rule (the “Rule”), further defining key provisions of the Vaccination Exemption Law.  Moreover, this Department (headed by the Attorney General) has issued guidance in the form of FAQs (the “Guidance”), outlining the employee complaint procedure for potential employer violations of the Vaccination Exemption Law.

The Rule

The Rule expands on key definitions under the Vaccination Exemption Law.  Importantly, the Rule clarifies that the new law does not apply to independent contractors, volunteers, or someone who works for nonprofit agencies without compensation.  The Rule further provides its own definition of “independent contractor,” which differs significantly from the common law criteria, usually employed to differentiate independent contractors from employees, and the Fair Labor Standards Act (“FLSA”) definition under wage and hour law.

The Rule also defines “functional equivalent of termination,” as used in the Vaccination Exemption Law, to mean: (i) the employee resigned under duress; or (ii) the employee is subject to intolerable working conditions such that a reasonable person in their shoes would feel compelled to resign.  Notably, neither the text of the law nor the clarification added by this regulation purports to state any rule about exemptions covering the hiring of new employees.

Lastly, the Rule provides for a web-based complaint procedure, either through an electronic portal or submitted via email.  Complaints that are received by the Department of Legal Affairs, once deemed legally sufficient, are subject to the Rule’s procedures for investigation and adjudication.

The Guidance

The Guidance outlines the complaint procedure for employees who allege employer violations of the Vaccination Exemption Law, and states that the Vaccination Exemption Law only applies to those private employers who impose COVID-19 vaccination mandates on employees located in Florida. To claim relief, employees must first submit an exemption form to the employer.  Employers that do not comply with the Vaccination Exemption Law—by failing to provide for the law’s exemptions and taking adverse actions against the employee—will be subject to fines (which may be substantial), but are not required to reinstate the employee.

Notably, the fines may be avoided entirely if an employer reinstates an affected employee, with full back pay, after being notified by the Department of Legal Affairs of the violation, but before a final determination of the violation is entered.  Given that the Rule provides the employer with twenty-one days to respond to a notice of violation, that time period can be seen as a safe harbor to ameliorate a violation through reinstatement and remedy by payment for work time lost.

What Employers Should Do Now

Private employers subject to the Vaccination Exemption Law should immediately amend their COVID-19 vaccination mandate policies for their Florida-based employees to provide for the five listed exemptions under the law. Such policies should require employees seeking such exemption to use the Florida Department of Health exemption request forms. Employers must also determine whether individuals present in their workplace should be classified as employees or independent contractors for purposes of the law (under the Rule’s definition), as the latter are not subject to the Vaccination Exemption Law.  Employers should also take note of the expanded definition of termination, which now expressly includes circumstances in which an employee resigns under duress or is subject to “intolerable working conditions” (i.e., constructive discharge). Lastly, employers are cautioned that, even though they are not required to reinstate employees terminated in violation of the Vaccination Exemption Law, substantial fines may be imposed.

*Kamil Gajda, Law Clerk – Admission Pending (not admitted to the practice of law) in the firm’s New York office, contributed to the preparation of this post.

[1] The Florida Department of Health has posted approved exemption forms, which can be found for the particular exemption here: (i) medical exemption; (ii) religious exemption; (iii) COVID-19 immunity exemption; (iv) periodic testing exemption; and/or (v) employer-provided PPE exemption.