COVID Vaccine Requirement Update

New Florida Law Limits Employer’s Ability to Require Vaccinations

By Attorney Mitchell Herring, Sniffen & Spellman, PA
December 6, 2021

The following is an update to the COVID Vaccine Mandate Stand-Off Article (Login Required)
Published November/December Source Magazine

The Occupational Safety and Health Administration (“OSHA”), recently attempted to enact a Rule that would have required all employers in the United States with more than 100 employees to require that their employees be vaccinated against COVID-19, with limited exceptions for medical and religious reasons. There was substantial outcry regarding this Rule, which resulted in dozens of private and public entities bringing suit to stay the implementation of this Rule. Ultimately, the federal Court of the Fifth District Court of Appeals issued a stay on the implementation of the Rule, prohibiting its enforcement until such a time that the Rule could be fully reviewed within the auspices of the Court. This stay was ultimately upheld, however the State of Florida took its reaction a step further, holding a special session of the Florida Legislature which resulted in the passage of laws specifically designed to limit employer’s ability to require their employees to be vaccinated.

The most notable of the laws passed during the special session was House Bill 1B (“HB 1B”), which prohibits employers from requiring employees to be vaccinated against COVID-19 if they submit a valid exemption form for any of the following reasons:

  1. Medical reasons including pregnancy or anticipated pregnancy (an employer may require proof of the applicability of such an exemption in the form of a DH8016-DCHP-11/2021 form dated and signed by a Florida licensed physician, physician’s assistant, or advanced registered nurse);
  2. Religious reasons (an employee must provide a completed DH8017-DCHP-11/2021 form to request this exemption);
  3. COVID-19 immunity (the employee must present proof of a positive COVID-19 test in the form of a completed DH8018-DCHP-11/2021);
  4. Periodic testing (an employee must complete a DH8019-DCHP-11/2021 agreeing to periodic testing at no cost to the employee); and
  5. The use of employer provided protective equipment (an employee must provide a completed DH8020-DCHP-11/2021 form to qualify for this exemption).

All of the forms referenced above are available at www.floridahealth.gov.

Regarding these exemptions, if an employee elects to request an exemption from vaccination on the basis of periodic testing or employer provided protective equipment, both the testing and the equipment must be provided at no cost to the employee and be paid for by the employer.

In the event that a private employer terminates an employee for failing to be vaccinated or enacting a policy contrary to these provisions, the employer may be subject to fines of up to $10,000 per violation if they have fewer than 100 employees, and up to $50,000 per violation if they have more than a hundred employees.

The present situation regarding employee vaccinations is highly volatile from a political perspective, and Florida employers should be cautious about enacting any mandatory vaccination policy without ensuring that they are acting in compliance with Florida Law. We highly recommend that you review your present policies related to COVID-19 to ensure that they do not violate these new laws and further recommend that you consult with an attorney if you have any questions regarding the application of these laws.

Mitchell J. Herring is an associate attorney with Sniffen & Spellman, P.A. He practices in areas of immigration, labor and employment law, insurance defense, and administrative law.  The Firm represents several statewide associations in a variety of transactional and litigation matters. He may be reached at [email protected] or (850) 205-1996.

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