Florida Passes Laws Against Federal Covid Mandates for a Showdown with Federal Government

No stranger to the limelight, Florida has been in the nation’s crosshairs when it comes to the state’s approach to the ever-evolving coronavirus. Beginning in the summer of 2020, Governor Ron DeSantis developed a hard-hitting phased plan to re-open businesses, fought school board mask mandates, and battled the cruise industry and other federal regulations by passing legislation to ban the requirement of vaccine passports. A vocal critic of President Biden’s COVID mandates, DeSantis, in conjunction with Attorney General Ashley Moody, filed a lawsuit against the administration in October over the vaccine mandate for federal contractors, citing the president demonstrated significant government overreach and the requirement violates procurement law.

In November, Governor DeSantis called a special session to consider his “Keep Florida Free” legislative agenda. The joint agenda included House and Senate bills that rejected all universal federal mandates that infringe on Floridians’ rights and protect people, parents, and businesses.

House Speaker Chris Sprowls supported the governor’s decision for a special session, stating:

“Authoritarian edicts from the Biden regime stop here. The ‘Keep Florida Free’ agenda represents the strongest response in America against attacks on personal health decisions, livelihoods, and liberty. From exploring separation from the federal Occupational Standards and Health Administration to affirming parents’ rightful role to decide whether their child wears a mask or gets a vaccine, I am proud to stand with Senate President Simpson and Governor DeSantis on the front lines of this common-sense American fight for freedom. In Florida, we will do everything in our power to ensure that no one will be forced to get a vaccine who does not want one.”

President Simpson echoed these comments, stating:

“I am proud to stand with Governor DeSantis, Speaker Sprowls, my legislative colleagues, and freedom-loving Floridians across this state who are just trying to raise their families and make a living. We were appalled by the unworkable, 490-page totalitarian edict the Biden Administration issued last week. After 40 years in the private sector running businesses that depend on an in-person workforce, where significant safety risks have to be mitigated, I am shocked to see such an unconstitutional mockery of the important role of OSHA. As a parent and grandparent, I continue to be dismayed at school district bureaucrats who think they know better than parents. Enough is enough. Our legislation to keep Florida free inserts some common-sense and clarity into the chaos we have seen in Washington by giving workers more options to stay safe on the job and honoring the rights and responsibilities of parents.”

The “Keep Florida Free” agenda introduced the following legislation for consideration:

SB 2B / HB 1B: REJECT COVID-19 VACCINE MANDATES

This comprehensive legislation protects students, parents, employees, and employers in Florida by creating a framework for employees to make the best decision for their health and affirming the rights of parents to make health care decisions for their children. This legislation:

• Creates Options for Private-Sector Employers and Employees
• Specifically, the legislation prohibits employers from having a COVID-19 vaccination mandate for employees without providing at least the five following individual exemptions:
  1. Medical reasons, as determined by a physician, advanced practice registered nurse, or physician assistant. Medical reasons include pregnancy or expectation of pregnancy.
  2. Religious reasons, based on a sincerely held belief.
  3. Immunity based on prior COVID-19 infection, as documented by a lab test.
  4. Periodic testing, agreeing to comply with regular testing at no cost to the employee.
  5. Personal protective equipment (PPE), agreeing to comply with use of employer-provided PPE.
• Prohibits Vaccine Mandates for Government and Education Employees:
  • The legislation builds on provisions of SB 2006, passed earlier this year, by affirming that no public educational institution or governmental entity may require COVID– 19 vaccination as a condition of employment.
• Protects Parents as the Sole Decision Makers for their Children:
  • The legislation makes it clear that parents and guardians have the sole discretion regarding whether their child will wear a mask in school and prohibits schools from requiring a COVID-19 vaccine. The legislation also prohibits quarantining of asymptomatic students and teachers to mitigate harm of learning loss.
• Enforces Measures with Fines and Parent Cause of Action:
  • If an employee is improperly denied an exemption, they can file a complaint with the Attorney General. Fines of up to $50,000 apply for employers who improperly terminate an employee, or the employer can reinstate the employee. If a public employee’s rights‘ are violated, the Department of Health may fine per violation, not to exceed $5,000. Furthermore, parents and guardians have the right to sue to stop the mandate and can recover their attorney fees and court costs to help ensure that the above provisions regarding their children are not violated.

SB 4B/ HB 3B: PROTECT PRIVATE HEALTH CARE AND RELIGIOUS INFORMATION

The legislation protects workers from undue retaliation by creating a public records exemption for certain information, such as personal medical information or information regarding an employee’s religious beliefs, contained in files created during an investigation of an employer that refuses to provide the individual exemptions or terminates an employee based on COVID-19 vaccination status.

SB 6B/ HB 5B: BEGIN WITHDRAWING FROM OSHA

The legislation takes the first step toward developing a proposal to withdraw from the federal Occupational Safety and Health Administration and assert state jurisdiction over occupational safety and health issues.

SB 8B/ HB 7B: REMOVE AUTHORITY OF STATE HEALTH OFFICER TO ORDER VACCINATIONS

The legislation repeals provisions of existing law, which have never been used, that could allow the State Health Officer to force vaccinations on Floridians.

At the conclusion of the three-day special session, the Florida legislature successfully handed Governor DeSantis a victory against President Biden’s COVID vaccine mandates with the passage of HB 1B. This legislation also provided $5 million to the Florida Attorney General’s office to help fund the state’s legal challenge against the federal rules. Other bills included:

• CS/HB 3B – Public Records
• HB 5B – Florida Occupational Safety and Health State Plan
• HB 7B – Vaccinations During Public Health Emergencies

The “Keep Florida Free” legislative agenda made the following provisions to law:

• Private Employer COVID-19 vaccine mandates are prohibited:
  • Employees can choose from numerous exemptions, including but not limited to, health or religious concerns; pregnancy or anticipated future pregnancy; and past recovery from COVID-19.
  • Employees can choose to opt for periodic testing or PPE as an exemption.
  • Employers must cover the costs of testing and PPE exemptions for employees.
• Employers who violate these employee health protections will be fined:
  • Small businesses (99 employees or less) will face $10,000 per employee violation; medium and big businesses will face $50,000 per employee violation.
• Government entities may not require COVID-19 vaccinations of anyone, including employees:
  • Educational institutions may not require students to be COVID-19 vaccinated.
  • School districts may not have school face mask policies.
  • School districts may not quarantine healthy students.
  • Students and parents may sue violating school districts and recover costs and attorney’s fees.

The legislative package was sent to Governor DeSantis for signature hours after passage. Governor DeSantis promptly signed these measures in to law in Brandon, Florida on November 18^th.

“I told Floridians that we would protect their jobs and today we made that the law,” said Governor Ron DeSantis. “Nobody should lose their job due to heavy-handed COVID mandates and we had a responsibility to protect the livelihoods of the people of Florida. I’m thankful to the Florida Legislature for joining me in standing up for freedom.”

Alongside DeSantis, Attorney General Ashley Moody announced that Florida is challenging the CMS rule in court. More information about this lawsuit can be found here.

Foley’s Florida Government Solutions Team, including Robert Hosay, Jason Allison, Jon Steverson, and Katie Kelly, as well as the national Foley Government Solutions Practice Group at large, is working closely with our employment, corporate, and litigation colleagues and will continue to monitor the situation very carefully. We will endeavor to answer any questions Foley clients may have, and are also prepared to advocate on their behalf in the Legislature, with the Governor’s office, the Attorney General, and, if necessary, in court.