November 18th, 2021
Signed by Florida’s Governor today,
a new law bans all private employers, regardless of size, from making COVID-19 vaccination mandatory
by Brian Lerner
Chair, Labor & Employment
While employers can require vaccination, employees must be able to opt out if meeting five exemptions:
Medical: while the law is not detailed in its explanation, this exemption likely functions similar to the medical disabilities analysis under federal laws like the Americans with Disabilities Act. The law however does note that pregnancy or anticipated pregnancy qualify as a medical exemption. To receive a medical exemption, the employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee.
Religious: while the law is not detailed in its explanation, this exemption likely functions similar to the “sincerely held religious beliefs” analysis under federal laws like Title VII. To receive a religious exemption, the employee must present a statement that s/he declines the vaccine because of a “sincerely held religious belief.”
“Immunity”: this exemption provides that an employee must show “competent medical evidence” that s/he has “immunity” to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not describe what “immunity” is, but directs Florida’s Department of Health to establish a standard for determining “immunity.”
Testing: this exemption provides that the employee submit a statement indicating that s/he will comply with the company’s requirement to submit to “regular testing.” Regular testing is not defined so the law directs Florida’s Department of Health to adopt emergency rules specifying requirements for frequency of testing. In regard to the exemption, the testing must be at no cost to the employee.
Personal Protective Equipment: this exemption provides that the employee submit a statement indicating that s/he will comply with the company’s reasonable requirement to use company-provided personal protective equipment when around others. “Personal protective equipment” is not defined.
While the new law still needs clarification, it does appear that companies may require vaccinations of their employees. Companies however must offer employees the ability to opt-out if they meet the exemptions. What is notable is that the law does not appear to prohibit companies from requiring employees to comply with testing (number 4) and personal protective equipment (number 5). In other words, if the company chooses, it can require those employees choosing not to get vaccinated to get periodically tested (at the company’s cost) and wear personal protective equipment.