 |
|
Mandatory Confusion: The State of Florida and
Vaccine Mandates
By: Kimberly J. Doud, Office Managing Shareholder (Orlando) and Nancy Johnson, Of Counsel
Littler Mendelson P.C.
In March of this year, we provided information about vaccine mandates and updates on the then-current “consensus” relating to vaccine mandates – wait and see. And, in large part, for various reasons, many employers did just that.
Fast forward eight months and many employers no longer have that option. Instead, for many employers it is time to decide the company’s position on vaccine mandates. Or, perhaps a decision has been made for you. Indeed, by November 4, 2021, a broad spectrum of regulations, including the Occupational Safety and Health Administration’s (OSHA) recent Emergency Temporary Standard (ETS) (the so-called federal vaccine or test mandate), the Centers for Medicare and Medicaid Services’ (CMS) interim final rule, and the federal contractor vaccination requirement, provide the following directive to all healthcare entities, federal contractors, and any other private employer with at least 100 employees: mandate vaccines for your workforce or test. The choice (for covered employers) appeared to be a foregone conclusion subject to (at least for those under the OSHA rule) a fine of up to almost $14,000 per violation (i.e., for each employee who should be, but was not, vaccinated timely or tested).
So, what is an employer to do? Get on board and mandate vaccinations, or else? Well, not so fast…. Shortly after these mandates were issued, several challenges were filed in federal appellate courts across the country, including State of Florida v. OSHA, case no. 21-13866, pending in the Eleventh Circuit, wherein Alabama, Florida, and Georgia challenged OSHA’s ETS, arguing it demonstrates a disregard for constitutional rights. On November 6, the Fifth Circuit (sitting in Texas) issued an order temporarily enjoining OSHA from taking any steps to enforce its vaccine or test mandate.
While employers and legal juggernauts alike pondered the questionable geographic scope of the Fifth Circuit’s order, on November 16, under Congress’s multi-district litigation (MDL) rules, the draw of a ping-pong ball consolidated the various federal court challenges (including the Fifth and Eleventh Circuit cases) for a single adjudication by the Sixth Circuit (sitting in Ohio). The Sixth Circuit will set scheduling, briefing, and possible oral arguments on all pending OSHA ETS challenges throughout the country.
If you are thinking this may take some time to unravel, you are likely right. But wait, Florida employers, there is more! On November 15, Florida convened a Special Legislative session specifically to address four proposed pieces of legislation related to COVID and vaccine mandates as Governor DeSantis vowed to fight the OSHA ETS, other vaccine mandates, and President Biden’s pandemic response plan. Governor DeSantis signed one law on November 18, which is of particular interest to employers. This leaves many Florida employers scratching their heads.
In this article, we will walk through the status of current federal mandates, the brand new Florida legislation requiring employers to allow employees to “opt-out” of any mandate, the interplay between the federal and state laws, and provide Florida employers, both public and private, some thoughts on how to navigate through these confusing times.
The Federal Mandates
In early fall as vaccine numbers in the U.S. were barely rising, the White House announced its intent to find ways to encourage additional vaccinations. Initially, as applied to the workplace, this meant certain agencies would require some degree of vaccination of some of its workforce.
Federal Contractors
On September 24, 2021, the Safer Federal Workforce Task Force released its Guidance for Federal Contractors and Subcontractors, which provided details answering the who, what, and where related to vaccine mandates applicable to federal contractors. At its core, this mandate applies only to contracts or contract-like instruments that include language incorporating the requirements of Executive Order 14042. The order requires incorporation of the language into government contracts or subcontracts involving services or construction or those relating to federal property as well as subcontracts for the manufacturing of products.
Understanding that the mandate applies only to those contracts, the Task Force interprets the order to apply only to employees “working on or in connection with a covered contract” and applies to all employees working at a covered contractor workplace (“a location controlled by a covered contractor at which any employee of a covered contractor working on or in connection with a covered contract is likely to be present during the period of performance for a covered contract.” Even employees working remotely on a covered contract are covered.
This mandate requires employees to be fully vaccinated unless they are accommodated under EEO laws and to follow CDC guidance for mask-wearing and physical distancing. Notably, covered contractors must allow accommodations for religious beliefs or medical contraindications to vaccination or to mask-wearing as proscribed by the ADA and/or Title VII. Further, the contractors are required to maintain proof of vaccination. The guidance also requires the designation of a person to coordinate workplace safety efforts related to COVID-19.
While federal contractors were initially required to comply by December 8, that deadline has been pushed back twice; now subject employees must receive their shots no later than January 18. While no injunction has been issued, as of November 1, 19 states have filed three separate lawsuits to stop the application of this order. Despite these challenges, employers considered to be federal contractors under this order should take steps actively to ensure compliance with the January deadline and to comply immediately with masking and social distancing dictates.
Healthcare Employers
At the same time the White House announced the federal contractor mandate, President Biden announced a planned vaccine mandate applicable to health care facilities receiving Medicare and Medicaid reimbursement.
On November 4, the CMS issued its interim final rule providing more specifics. This rule mandates the vaccination of persons employed by certain enumerated healthcare providers and suppliers, all of which are subject to Medicare or Medicaid “conditions of participation, conditions of coverage or requirements for participation.” Covered facilities must generally minimize the risk of COVID-19 transmission at work to at-risk individuals by immediately implementing a process or plan to vaccinate all eligible employees and potentially others by January 4, 2022.
Those healthcare providers subject to this rule must develop a process or plan for vaccinating all eligible staff, provide for appropriate exemptions in accordance with federal law (ADA and Title VII) and develop a plan for tracking and documenting vaccinations and exemptions. The subject facilities must have a process or plan in place by December 6 and all staff must have received all shots for full vaccination status by January 4. The requirements apply to all eligible staff working for a provider, regardless of the clinical responsibility and to the staff who perform duties offsite and to individuals who enter into a CMS-regulated facility including vendors and visitors, but does not apply to full-time remote or teleworkers.
As of the writing of this article, there are several lawsuits filed by more than 20 states challenging this rule. However, just like the federal contractor mandate, there is no stay in effect and employers subject to this rule need to plan for and prepare to comply with this rule. Subject employers failing to comply with this rule may lose Medicare and/or Medicaid funding.
The OSHA ETS – “Large” Employers
Also, on November 4 (at the same time as CMS’s Interim Rule), OSHA announced the issuance of its ETS, requiring any employer with more than 100 employees to impose “vaccine or test” requirements on its workforce.
First any employer with at least 100 employers nationwide including temporary workers, seasonal workers, part-time workers and minors, is covered. However, unlike the federal contractor or healthcare orders, the ETS specifically requires covered employees to be vaccinated unless they undergo specified COVID-19 testing at least weekly.
The ETS requires employers to do several things by December 6, including: having a written vaccine policy; identifying those employees who are vaccinated; and notifying employees of certain facts about the COVID-19 vaccines available. Then, by January 4, 2022, all employees must either be vaccinated, subject to a testing protocol or have an approved exemption. Employers that do not comply with this standard may face fines of up to $14,000 per violation.
However, unlike the CMS interim final rule or the federal contractor mandate, the OSHA ETS, at least within the Fifth Circuit (Texas, Louisiana, and Mississippi), cannot be enforced until “further order of court” because there is a current injunction against OSHA’s enforcement of its ETS. There is an argument the injunction may also be applicable nationwide, but while the Fifth Circuit issued a 22-page opinion, it failed to define a geographic scope. Indeed, the order was issued in response to several different requests for injunctions, some of which asked for nationwide relief and others seeking relief as to individual entities. Given this lack of clarity, employers should be wary to assume the order’s reach.
As of November 16, pursuant to MDL rules, these challenges as well as challenges mounted in every federal circuit are now consolidated and the outcome set for determination. OSHA has announced while it remains confident in its authority to protect workers in emergencies, it will suspend its enforcement of the ETS until further word from the Sixth Circuit.
While what will happen with these challenges is anyone’s guess, the Sixth Circuit is generally considered more conservative on the legal spectrum with 11 judges appointed by Republicans and 5 appointed by Democrats.
New Florida Law
On November 15, the Florida Legislature convened a special session to consider four proposed bills. The four bills were signed into law effective “immediately” on November 18.
The most relevant law to Florida employers now prohibits private employers in Florida from imposing a vaccine mandate without also providing individual exemptions allowing employees to opt out of such requirement based on any of five enumerated reasons. Those reasons include allowing for exemptions based on:
- “medical reasons” including but not limited to pregnancy or anticipated pregnancy;
- “religious reasons”;
- “COVID-19 immunity”;
- Voluntary periodic testing (at no cost to the employee); or
- Voluntary use of employer-provided personal protective equipment.
If an employer receives a completed exemption statement requesting an exemption based on any of these criteria, the employer must allow the employee to opt-out of the mandate or face a sizeable fine of up to $10,000 per violation if the employer has less than 100 employees or up to $50,000 per violation if 100 or more employees.
Which Rule to Follow?
When federal and state laws present an actual conflict (where a party cannot comply with both laws at the same time), the federal rules generally preempt state law. However, the various federal rules are not applicable to all employers. Further, to the extent the Florida law does not actually conflict with whatever federal rule may be applicable to an individual employer, the state law may apply. As a result, each employer should conduct an individual evaluation to determine the impact the various laws will have on it.
For example, the healthcare sector should evaluate whether the CMS rule and/or the OSHA ETS applies. The OSHA ETS covers employers with 100 or more employees. And, the federal contractor rule may not apply to many private employers. And, even non-healthcare, non-federal contractor employers with less than 100 employees might consider whether they should mandate vaccines under OSHA’s general duty clause. So, Florida employers also need to evaluate the new Florida laws to determine how to approach vaccine mandates.
As deadlines quickly approach, and new state laws emerge, companies with employees in Florida will need to comply with their various obligations under applicable law. This may mean modifying existing policies to provide accommodations to employees who object to being vaccinated on medical or religious grounds. It may also mean tracking employee vaccination status and/or offering weekly testing in lieu of mandatory vaccinations. Until employers receive clarity on their various obligations under federal and conflicting Florida laws, employers should consult with counsel.