TALLAHASSEE — In an effort to protect unvaccinated employees from retaliation, Florida legislators advanced bills on Monday that will create a new exemption from public records that critics warn is unconstitutionally broad.
Under the bills, SB 4B and HB 3B, the Florida Attorney General will be allowed to launch investigations into businesses that require employees to be vaccinated and, if found in violation of a new vaccine mandate law, the state may impose fines of $10,000 to $50,000 per violation.
But under the bills, the public won’t be able to know what companies are being reviewed or investigated, and there is no requirement for the state to report its findings.
Critics warn that the bills are unconstitutionally vague and broad because they exempt the entire employee complaint when they could be more narrowly written. Without public disclosure some businesses could receive more favorable treatment than others while other businesses could get aggressively prosecuted, said Pamela Marsh, president of the Florida First Amendment Foundation, a nonprofit that opposes the bills. Both the Tampa Bay Times and the Miami Herald are members of the organization.
“The Legislature is giving a state agency authority to investigate while excluding all public oversight of such investigations,’’ Marsh said. “The government would have no accountability regarding how the investigations are handled. How would the public know whether complaints for medical or religious exceptions were treated with fairness and sensitivity to all medical conditions and all religions?”
Under the bills, employee complaints and all information related to the attorney general’s investigations would remain exempt until the investigation is completed — unless the information would “jeopardize the integrity of another investigation” such as other employee complaints.
Marsh calls that “a massive loophole” because that other investigation would also be confidential, the employee’s complaint might be withheld by an agency indefinitely.
Legislative leaders defended the measure on Monday by saying that their intention is to protect the names of individuals who are afraid of retribution from their employers.
“This is an opportunity for us to make sure we’re protecting people’s private information,’’ said House Speaker Chris Sprowls, a Palm Harbor Republican.
The measure is one of four bills being discussed this week as legislators meet in special session to require companies to provide alternatives to vaccine mandates. But in addition to creating a new records exemption, the measure also achieves another of their goals: to increase the hurdles for companies that believe that vaccinations are the best way to keep their workplaces safe from COVID-19.
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Neither Sprowls nor Senate President Wilton Simpson, R-Trilby, would explain why the policy had to exclude the names of companies under investigation.
Earlier this year, the Orlando Sentinel obtained the list of more than 100 private employers who were under investigation by the Department of Health for violating the state’s vaccine passport requirement because they required employees to show proof of vaccination to remain employed. Since then, the agency has refused to release subsequent lists of the companies under investigation despite numerous requests from the Times/Herald.
The companion bills passed out of the House Commerce Committee and the Senate Judiciary Committee and will be voted on by the full House and Senate on Tuesday.
Democrats opposed the exemption, which expires in October 2023, and warned that unless the measure is amended and narrowed, Republicans may lose the provision all together. For a public records exemption to pass, it needs a two-thirds vote in each chamber, which would require one or two Democratic votes in the Senate, depending on how many members are present.
Rep. Joe Geller, D-Aventura, said he is drafting an amendment to narrow the bill to exempt only the personal information of employees who lodge a complaint.
“Protecting and redacting the names of a complainant should not protect the target [of the investigation],’’ he said.
“The way it’s drafted is you can have companies that have been found to be in violation and find that there’s been absolutely no fine levied or violation found because it’s got a most favored nation status with the governor,’’ said Sen. Jason Pizzo, D-Miami.
“At most, the name of the employee could be redacted,” Marsh said. “But withholding the entirety of the employee’s complaint is an enormous overreach. The exemption takes something narrow and gives it the broadest bubble of protection because the issue pertains to the politicization of COVID-19 vaccines.”