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Employers navigate vaccine mandate changes

Fla. legislation opposes federal guidance
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Posted at 4:57 PM, Nov 19, 2021

TAMPA, Fla. — Employers are up against some tough decisions about how to implement COVID-19 vaccine policies as Florida leaders roll out new rules.

In Florida, effective immediately:

✓ Private Employer COVID-19 vaccine mandates must include opt-outs.

‣ 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.

RELATED: In-Depth: Confusion at all levels over COVID-19 vaccine mandates

The new legislation is generating a lot of calls into employment law offices across the state. Brad DeBeaubien of Shumaker Law says the conflict between state and federal guidance is confusing for employers. “Employers are definitely finding themselves in a challenging spot,” he explained.

Ryan Barack, a labor and employment lawyer with Kwall, Barack, Nadeau agrees. “It’s a mess and it’s really an unnecessary mess.”

The new state legislation is in opposition to a federal ruling that would require all employees of companies with more than 100 workers to get vaccinated.

ABC Action News reached out to several local employers to find out how they’ll navigate the difference in rulings. Many are still unsure how they’ll handle the latest guidance from the state.

Yet, at least one, Sarasota Memorial Health Care System is taking a stance. The hospital will require the vaccine for all employees and medical staff, choosing to follow federal guidance, and risk state fines. Hospital leaders say they can’t risk losing out on Medicare and Medicaid participation since 62% of their patients rely on the programs.

Hillsborough County leaders also sent ABC Action News a statement. The county currently requires all new employees to be vaccinated against COVID-19. “The legislation is still very new. We are examining what impact it may or may not have on our hiring policies. As the information comes in, we will be looking to see what changes need to be made, if any, to our job requirements.”

The question remains: Which guidance should employers follow—federal or state?

“The conflict here is the state versus the federal. Generally, federal law preempts state law which means federal law trumps state law and that will be challenged in the courts. You can bet in short order here in Florida,” DeBeaubien explained.

The state legislation also puts the financial responsibility for testing and protective equipment back on employers. Local employment attorneys expect the legality of both the state and federal vaccine guidelines to be held up in court.

“I think the courts are going to be sorting this out for months and years as this all shakes out. It’s really just a drain on everyone’s time and focus and really the focus should be on getting people vaccinated and getting us back to as normal as can be instead of playing political games,” Barack added.