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Q&A – Do Unvaxxed Floridians In The Workforce Still Have To Worry?
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Today’s entry:Two questions for you about the vax mandate. 1. Is it true that OSHA has stopped the attempted enforcement of the vax mandate Jan. 4? 2. Because of Florida’s new legislationdoes the OSHA rule matter in Florida regardless?
Bottom Line: I specifically wanted to address this topic because I’ve heard from numerous listeners over the past couple of days who’ve potentially misinterpreted OSHA’s recent actions. It’s also a good time with Governor DeSantis signingadditional protections for unvaccinated Floridians in the workforce in law. So, what’s really happening here and what does it mean to the non-COVID-19 vaccinated employees in Florida’s workforce? Let’s start with OSHA and their official position regarding vaccine mandates.
On November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit granted a motion to stay OSHA's COVID-19 Vaccination and Testing Emergency Temporary Standard, published on November 5, 2021 (86 Fed. Reg. 61402) ("ETS"). The court ordered that OSHA "take no steps to implement or enforce" the ETS "until further court order." While OSHA remains confident in its authority to protect workers in emergencies, OSHA has suspended activities related to the implementation and enforcement of the ETS pending future developments in the litigation.
It’s important to know what that means and what it doesn’t. What it does mean is that OSHA has stopped pressuring employers to begin to prepare for the implementation of the vaccine mandate. What it doesn’t mean is that they’ve given up on the rule and potential enforcement of it. Here’s the long and the short of it. After the fifth US Circuit Court of Appeals issued a stay on the OSHA rule pending the hearing of the case before the court, the rule was disallowed by the court to have the full effect of law. However, in spite of the stay, OSHA came back over the top of the court and instructed employers to continue to prepare for compliance with the rule. That then prompted a more rigorous response by the court, in which they called the mandate “fatally flawed” making clear that it would be unlawful for the Biden administration to press on this matter until it was resolved under further judicial review. In other words, all OSHA’s recently done is comply with the law, giventhat they elected not to comply with when the stay was issued.
So really nothing’s changed from an employee perspective. You still have the Biden administration fixated on implementing the vaccine mandate given the opportunity and the matter at the federal level will ultimately be decided in the courts. What did change is from an employer perspective. Employers are not to comply with the OSHA request at this time, nor do employers currently retain the legal right to pressure employees to get vaccinated under threat of being fired due to the OSHA rule. That’s not to say employers can’t impose their own mandates independent of the OSHA rule, but should employers choose to do so, it needs to be independent of the OSHA guidelines unless the courts find in favor of the Biden administration. That takes us to Florida’s new law.
Florida’s new law pertaining to COVID-19 vaccine mandates is quite clear.
- Public sector employers are banned from mandating COVID-19 vaccines of their employees
- Schools are banned from imposing a COVID-19 vaccination mandate to attend school
- Private sector employers may impose mandates provided they allow for opt-outs due to medical considerations, religious preference, pregnancy or expected pregnancy status and allow for testing at the employer’s expense
Should the OSHA rule manage to survive legal challenges it would be in conflict with Florida’s new law. And that would be the subject of further litigation which would have to be decided in the courts. So back to where your two questions started. OSHA hasn’t stopped their vaccine mandate effort. They’re currently stopped in the courts and what happens from here is TBD. As for Florida’s new law, yes what happens with the OSHA rule matters. If the OSHA rule goes down in the courts, Florida’s law won’t be in conflict and thus there wouldn’t be a legal showdown between the Biden administration and the state of Florida over that rule. If the OSHA rule is in force, the fate of Florida’s law would be decided in the courts.
The bigger takeaway for the 1.68 million Floridians at risk of being fired under the Biden administration’s mandate is this. Right now, the law, both in the state of Florida and at the federal level, are in favor of you’re right not to obtain a COVID-19 vaccine. Hopefully it remains that way. If it works out that way,it’s not because the Biden administration isn’t fighting to attempt to fire you, they still are, it’s because the law is in your favor...starting with the law in the free state of Florida.