TALLAHASSEE — Florida legislators will convene a week-long special session Monday to pass new regulations on businesses that require employees to get vaccinated for COVID-19.
The proposals do not ban vaccination requirements but will impose five new exemptions for employees who don’t want a vaccination, all but one of which mirrors a federal rule.
▪ A medical note from a doctor stating the person is pregnant or expecting to be pregnant or has another health issue.
▪ They can 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 “no cost to the employee.”
▪ If the employee wears employer-provided “personal protective equipment” (such as masks).
The state has found more than 100 employers who have imposed vaccine requirements on their employees or laid off employees for not getting vaccinated. For those businesses, the law will not be retroactive, and those companies will face no sanctions.
And for employees who oppose the vaccine, object to getting it, or claim that their exposure to the COVID-19 virus already provides them with sufficient immunity, the legislation will be a victory.
“Nobody should be losing their jobs because of these jabs,” DeSantis said Nov. 8 at a news conference. “We’ve got to stand up for people and protect their jobs and protect their livelihoods.”
However, one big hurdle stands in the way of the legislation becoming law in Florida: A series of federal rules pushed by President Joe Biden’s administration.
The federal government is requiring that any business that contracts with the federal government vaccinate its employees. The Occupational Health and Safety Administration is requiring that employees working for private companies of more than 100 employees be vaccinated unless they can claim a religious or medical exemption or agree to be tested weekly. And healthcare providers that receive Medicare or Medicaid funding also must vaccinate every employee, unless they can claim the same exemptions.
DeSantis, like governors in a dozen other states, is challenging the federal rules. A federal court has temporarily stopped the provision relating to private employers, but a final ruling could take months.
The result is an inevitable clash. If Florida legislators pass the new restrictions, they could put many businesses in the crosshairs of a legal firefight between the state and federal government.
“It’s like a tug of war, and the employer is the rope,” said David Miller, a labor and employment lawyer in Miami.
He said his clients have been bracing for the Occupational Health and Safety Administration’s vaccine mandate since July, when Biden announced he would require federal workers and contractors be vaccinated or undergo weekly testing.
Some employers have already imposed their own vaccine requirements for workers, Miller said. But if the Legislature enacts new requirements, he’ll advise clients to comply. If the Occupational Health and Safety Administration requirements stand, then he would advise clients covered by it to obey the federal rule because federal law generally trumps state law.
“The federal law will override the state law,’’ said Sen. Jeff Brandes, R-St. Petersburg. “They have to follow whatever law is in effect and, if they conflict, then they follow the superior law’' which, under the Supremacy Clause of the U.S. Constitution, is the federal law.
‘It’s chaos right now’
The new federal rules require that healthcare providers adhere to the federal COVID-19 vaccine mandates for hospital staff and many other medical workers by Jan. 4, or risk losing billions in Medicare and Medicaid funding.
But if they follow the federal rules and legislators pass their proposal, the state could fine a small employer $10,000 every time it fires an employee for being vaccinated. For businesses of 100 or more employees, the fine would be $50,000 per violation.
Most healthcare companies have said that given the choice, they will obey the federal rule, but they are also asking legislators to exempt them from the new state law.
“Florida’s lawmakers are poised to pass legislation that would restrict vaccine mandates for employers, making it impossible for providers to be in compliance with both state and federal guidance unless a healthcare exemption is put in place,’’ said Steve Bahmer, president and CEO of LeadingAge Florida, an association that represents long-term care providers.
“The loss of Medicaid and Medicare funding would be devastating to providers and could ultimately displace Florida’s most frail elders,” Bahmer said in a statement on Friday.
Brandes said that there is value in passing legislation despite the likely and inevitable conflict this creates for healthcare providers.
“It’s chaos right now,’’ he said. “Half the hospitals are ignoring it and half the hospitals are trying to do it. When you add on top of that the nursing shortage and physicians who refuse to take it and could be denied access to the hospital, then you have all kinds of other system issues.”
By providing alternatives to vaccination, he believes legislators will help the hospital industry work through those issues.
“Will it satisfy everyone?” he asked. “Who knows?...It provides exemptions wide enough to drive a truck through.”
While many employers bristle at the federal rules, some now say the Legislature’s alternative doesn’t make things much better.
For Irina Vilariño, a single mom whose family owns the Las Vegas Cuban Cuisine chain in South Florida, the regulations don’t solve her problems.
“We’re not in the business of administering people’s health,” she said.
With about a dozen restaurants, Vilariño said her family employs over 350 people, well over the 100 required to have employees vaccinated or tested weekly under the new federal vaccination rules administered by OSHA.
She was one of six business owners who spoke at a roundtable with Republican National Committee Chairperson Ronna McDaniel during a visit to Doral this week.
But some of the proposals by lawmakers for the special session, such as offering COVID-19 testing or providing personal protective equipment as an alternative to requiring vaccination, will be expensive for businesses to comply with, she said.
“We don’t know the magnitude of the implications that this is going to cost us,’’ said Vilariño, a former Republican candidate for Congress in South Florida. “Any industry, our industry was already struggling. It was one of the first industries to be hit during coronavirus and we haven’t fully recuperated.”
Legislative leaders respond that to limit the cost of testing, businesses could make use of public testing facilities in their area “if available,” said Sen. Danny Burgess, R-Zephyrhills, who is sponsoring the Senate version of the bill dealing with mask and vaccine mandates.
He acknowledged that details have yet to be worked out but said that “medical professionals” at the Department of Health will be the ones to make the decision on how frequently unvaccinated employees must be tested.
“With the current state of the pandemic, once a week seems to be a common benchmark for asymptomatic people right now,’’ he said. “But as we know, things can change, and that’s why we put ‘regular’ testing in the bill, to allow flexibility.”
Burgess noted that testing is just one of five options for employees to use to avoid getting vaccinated.
“At this point, the vast majority of people are vaccinated, and what we hear anecdotally is that many people who are not vaccinated are hesitant because of prior COVID infection or because of a health condition,” Burgess said. “Because we allow an exemption [confirmed by a lab test] for prior infection, I really think that’s going to cover a lot of the unvaccinated workers.”
Bill Herrle, executive director of the National Federation of Independent Businesses in Florida, said his group fully supports the governor’s effort to push back against the federal mandate but has concerns about how much it could cost businesses to accommodate employees who choose to be tested instead of being vaccinated.
The legislation doesn’t define what constitutes a “vaccine mandate” and employers wonder if they have to put the mandate in writing.
“In our read of it, we would like a very clear explanation of what constitutes a vaccine mandate,” Herrle said.
The special session also gives the state the opportunity to standardize exemption forms for businesses to allow employees to opt-out of a vaccine requirement and to clarify that if an employee gets an adverse reaction to a vaccine and the company has a vaccine mandate, the employee can be covered by workers compensation, Brandes said.
The federal government has not produced uniform forms for business and cannot include those kinds of workers compensation protections for workers because states have jurisdiction over what is covered by workers compensation, he explained.
Several Republican leaders say they hope the federal government will take a lesson from Florida and provide employers with more flexibility and provide options for vaccine opponents or go so far as to retract the Occupational Health and Safety Administration rule.
“We can be a beacon for other states to join in,’’ said Sen. Aaron Bean, R-Jacksonville. “I know there will be lots of court battles and decisions to be made and hopefully, once we show the path of freedom, others will follow, courts will follow and they will recognize that it’s a massive overreach of the federal government.”
Miami Herald staff writer Bianca Padró Ocasio and Tampa Bay Times staff writer Kirby Wilson contributed to this report.