On November 18, 2021, Florida passed a new law that bans private employers in the state from implementing mandatory vaccination policies for their workforce, unless they provide opportunities for their employees to request exemptions to such policies for: (1) medical reasons (including pregnancy or anticipated pregnancy); (2) sincerely held religious beliefs; (3) COVID-19 “immunity”;(4) the employee’s agreement to submit to periodic testing; or (5) the employee’s agreement to comply with an employer-provided Personal Protective Equipment (“PPE”) requirement. It also requires that any testing be done at “no cost to the employee” leaving open the possibility that the employer may have to bear the cost of testing.
The new law also authorizes the Florida Attorney General (upon a complaint filed by an employee) to impose fines for violations up to $10,000 for private employers with less than 100 employees, or $50,000 for private employees with more than 100 employees.
Laws are preempted only to the extent they actually conflict. If there is a way for employers to comply with both a federal mandate and related state law requirements at the same time, employers likely need to do so. Until affected Florida employers receive judicial clarification of their obligations under federal and state law, they would be well-advised to consult with counsel about navigating potentially conflicting mandates regarding COVID-19 vaccines.
New Compliance Deadlines under the OSHA ETS to Employers with 100 or More Employees!
U.S. Court of Appeals for the Sixth Circuit dissolved the Fifth Circuit’s stay of the Vaccination and Testing Emergency Temporary Standard.
OSHA will now implement this workplace health standard, which is intended to protect the health of workers by mitigating the spread of the unprecedented virus in the workplace.
To provide employers with sufficient time to come into compliance, OSHA will not issue citations for noncompliance with any requirements of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard.
What does that mean for employers:
You need to have your ETS-compliant policy in place by January 10.
You need to collect vaccination data by January 10.
You need to require masks for the unvaccinated by January 10.
In other words, you’ve got a lot of work to do, quickly.
There is a wildcard, however. An appeal from the 6th Circuit’s decision has already been filed with the Supreme Court. Will SCOTUS allow the mandate to move forward while we wait for a decision on the merits, or will it reinstitute the stay? No one knows, but we should hopefully know before Jan. 10. In other words, this could all change on a dime depending on what SCOTUS says.
Until then, however, as the Boy Scouts famously say, “Be prepared.” Get those policies and other compliance efforts ready. Jan. 10 will be here before you know it.