THE FEDERAL VS. FLORIDA VACCINE MANDATE TUG OF WAR

The Occupational Safety and Health Administration (OSHA) released its rule on November 4, 2021, mandating employers with at least 100 employees to require all their employees to be vaccinated against COVID or to wear masks and get tested weekly for COVID. The federal rule provides exemptions based upon medical reasons or entitlement to an accommodation due to disability or deeply held religious beliefs. As part of the federal rule, employers would be required to obtain proof of vaccination from those employees who have been vaccinated. Although the federal rule was originally scheduled to take effect on December 6th, the start date was bumped back to January 4, 2022, following a temporary nationwide stay imposed by a federal court.

On January 7th, the United States Supreme Court heard legal arguments regarding challenges to the enforceability of this federal rule. Notwithstanding, OSHA had stated that employers with 100 or more employees should plan to comply with the rule as OSHA intended to move forward with enforcement. OSHA noted that in light of the temporary stay, those employers who have exercised reasonable, good faith efforts to comply (but have not yet complied) will not be issued citations for noncompliance until after January 10th. Further, OSHA will not issue citations for failing to test unvaccinated employees until after February 9th.

On the other hand, on November 18, 2021, Florida enacted Section 381.00317, Florida Statutes, which prohibits private employer from requiring vaccine mandates that do not permit for wide-ranging exemptions to opt out. In addition to exemptions for medical, disability, and religious beliefs, the statute also requires exemptions based on an employee's agreement to get tested regularly or an agreement to wear personal protective equipment (PPE) around others. Although the federal law allows for regular testing and wearing of face masks in lieu of vaccination, Florida's statute requires employers to allow for an exemption either for regular testing or for wearing PPE. Employers are subject to significant fines for terminating an employee in violation of this new law (up to $10,000 per employee for businesses under 100 employees; up to $50,000 per employee for business with 100 or more employees).

Put simply, the federal government is mandating employer vaccination programs, whereas Florida is prohibiting employer vaccination mandates. The conflict is putting some associations, country clubs, and other covered businesses in the middle of the dispute. In view of the uncertainty, such employers are strongly encouraged to contact qualified legal counsel for advice in navigating the contradictions between employee vaccination mandates and prohibitions. The United States Supreme Court will hopefully illuminate all of us on these contradictory laws soon.

SACHS SAX CAPLAN

MICHAEL UNGERBUEHLER