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DeSantis proposes vaccine bills for employers, but doesn’t ban mandates

The proposed legislation is watered down from what he originally put forward.
Gov. Ron DeSantis on Monday announced a slate of vaccine-related bills state lawmakers will take up next week, and they still allow private employers to require that their employees be vaccinated.
Gov. Ron DeSantis on Monday announced a slate of vaccine-related bills state lawmakers will take up next week, and they still allow private employers to require that their employees be vaccinated. [ AMY BETH BENNETT | Sun Sentinel ]
Published Nov. 8, 2021|Updated Nov. 9, 2021

TALLAHASSEE — For weeks, Gov. Ron DeSantis has railed against vaccine mandates, threatening harsh penalties against employers who require employees be vaccinated.

On Monday, he announced a slate of vaccine-related bills state lawmakers will take up next week, and they still allow private employers to require that their employees be vaccinated.

Far from a ban, one of the bills lawmakers will consider requires employers to offer more alternatives to opt out of mandatory vaccines. Companies that don’t comply could face thousands of dollars in fines.

That bill is one of several intended for next week’s special legislative session as DeSantis battles what he says are onerous restrictions handed down by President Joe Biden and local school districts.

Lawmakers are proposing allowing parents and students to sue school boards or districts over mask mandates and automatically be awarded attorney’s fees if they prevail.

DeSantis on Monday called the bills “probably the strongest protections for both private and public sector employees anywhere in the country.”

But the bills are significantly watered down from what he initially proposed, reflecting the quiet pushback he’s received from the state’s largest employers. Last month, he said he wanted businesses to be held liable for any medical harm arising from a mandatory vaccination. He also wanted to open up employers to COVID-related lawsuits if they required employees be vaccinated. Neither of those ideas are in bills released Monday.

Despite the scaled-down scope of the session, the proposed legislation could set up another legal showdown in court between the state and federal government over who has jurisdiction over employee health and safety. If passed, the measures could make Florida law conflict with both federal statute and new COVID rules imposed on businesses by the Biden administration.

DeSantis said the legislation is needed to protect workers from getting fired because of a federal rule pushed by Biden that would require businesses with 100 or more employees to mandate that their workers be vaccinated. DeSantis is challenging that rule, which has been temporarily stopped by a federal court.

“Nobody should be losing their jobs because of these jabs,” DeSantis said Monday. “We’ve got to stand up for people and protect their jobs and protect their livelihoods.”

The Florida Senate’s Democratic leader, Sen. Lauren Book, D-Plantation, said the proposed legislation “dangerously threatens the safety of workers and communities” by stripping protections.

“‘Floridians deserve freedom — but only if you think like we do.’ That’s the message broadcast by Florida’s GOP leaders this morning,” she said in a statement.

State lawmakers could have taken up the proposals during their scheduled return to Tallahassee on Jan. 11. But DeSantis said lawmakers couldn’t wait, and he requested they return for a week on Nov. 15.

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Some of the bills released Monday don’t appear to reflect that urgency:

  • A provision in one bill says that for the next 18 months, the state can’t deny unemployment benefits to people who lose their jobs for not complying with an employer’s vaccine mandate. But the state’s unemployment agency, which reports to DeSantis, is already providing benefits in those cases, the agency told the Times/Herald last week.
  • Another bill orders the governor’s office to come up with a plan for a plan to replace the Occupational Safety and Health Administration as the state’s workplace oversight agency. The governor has to release his plan for how the state would plan to leave the federal agency’s oversight by Jan. 17.
  • Another bill would strip the state surgeon general of the ability to mandate vaccination on an individual during a a public health emergency — something the surgeon general has never done. That law, which was created following the Sept. 11, 2001 terrorist attacks, would still allow the surgeon general to require someone to be tested, treated, quarantined or isolated during such an emergency.

Confusion over mandates

In May, DeSantis signed into law a bill that prevents government agencies or businesses from requiring employees or customers to show proof of vaccination. The law went to effect in July and did not address employers that required employees to be vaccinated in the workplace.

Since then, the Florida Department of Health has fined Leon County $3.5 million for requiring more than 700 employees to be vaccinated or be laid off, and it pointed to the vaccine passports law. Now, Leon County is suing the state in district court, challenging it for illegally imposing a fine and fee, arguing that the law did not prohibit vaccine and testing protocols. To bypass the legal challenge, the DeSantis administration is seeking to have legislators clarify the law.

The law had already been challenged by Norwegian Cruise Lines, who required all passengers to be vaccinated, and a federal judge in August stopped Florida from applying the law to its cruises.

Meanwhile, some of Florida’s largest private employers, such as Disney, Google and some hospital chains, have put vaccination requirements in place for their workers that the proposed legislation threatens to derail.

Bills released Monday would prohibit school districts and local governments from imposing vaccine mandates for any employees.

For private employers, it would require them to offer several ways for employees to get around complying with a vaccine mandate. Employers would have to offer several opt-outs to employees:

  • If they have a medical note from a doctor stating the person is pregnant or expecting to be pregnant or have another health issue.
  • If they claim a religious exemption.
  • If they have “immunity” to COVID and have a “competent medical test” to show it.
  • If they’re undergoing “periodic testing” at “not cost to the employee.”
  • If the employee wears employer-provided “personal protective equipment” (such as masks).

Employers with fewer than 100 employees who violate the provision would be fined $10,000 per violation. Those with more than 100 workers would face $50,000 per violation. The bill also gives Attorney General Ashley Moody’s office $5 million to enforce the provision.

Thomas Unnasch, a distinguished professor at University of South Florida’s College of Public Health who specializes in vector-borne diseases, said the Legislature’s vaccine mandate exemptions weaken workplace protections.

He said he took issue with several of the exemptions, including one involving pregnant women. Unnasch contended that COVID-19 is far more dangerous to a pregnant woman than any COVID-19 vaccine.

“This is a political decision,” the professor said of the various exemptions. “If you were basing this on the science, you wouldn’t do it this way.”

Penalties for school districts

As for schools, DeSantis and Republican leaders have agreed to wording that would put into law what the Florida Department of Health has already done through an administrative rule: give parents sole discretion over masking and COVID-19 quarantines.

Though not much would change, the bill would put into law that schools are not allowed to impose mask mandates or require an asymptomatic student to quarantine after they have been exposed to COVID-19.

The bill would add a new enforcement mechanism into statute. It would allow a parent, emancipated minor or a student who is 18 years or older to sue their local school board, superintendent or any school board employee if they feel the law has been violated.

Through the court action, parents and students would be able to seek a resolution to the matter from a judge. If they prevail on the matter, they could be awarded attorney fees and court costs.

DeSantis said last week that citizen-led lawsuits would be the “best way to enforce” any perceived wrongs over COVID-19 protocols at schools.

The DeSantis-backed bill would bar schools from requiring that children get the COVID-19 vaccine for any reason. Under state law, parents of school-aged children can already refuse and opt out of state immunization requirements in several instances, including medical and religious reasons.

What would be different with the COVID-19 vaccine, though, is that parents would just be able to say ‘no.’ And if they feel a school is restricting their ability to do so, they would be allowed to sue local school officials and collect attorney and court fees.

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