The Brian Mudd Show

The Brian Mudd Show

There are two sides to stories and one side to facts. That's Brian's mantra and what drives him to get beyond the headlines.Full Bio

 

Q&A – What Florida’s Vax Mandate Ban Means For Employers & Employees

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Q&A – What Florida’s Vax Mandate Ban Means For Private Employers & Employees

Each day I feature a listener question sent by one of these methods. 

Email: brianmudd@iheartmedia.com

Gettr, Parler & Twitter: @brianmuddradio 

Today’s entry: Good morning Mr Mudd; I've been listening to you for about 7 years. I've come to trust your opinion not because I agree with you but because you back it up with facts.

I'm 35 years old and still want to have kids. Healthy and not overweight. I've beenwearyof the vaccine not because it doesn't work but I don't know the long-term effect and I've personally seen people have bad reactions to it. I've already had and recovered from covid. 

After DeSantis passed those anti mandatelawsI felt a little more at ease. But my job notified me that we need to get vaccinated or we will be suspended. They are giving me an option for medical or religious exemption but I don't think I qualify for it.  

In your fact-based opinion is what they are doing legal? And if it is, do I have any options?

I'm starting to stress now. I'm a libertarian and I believe in freedom of choice, but I also now work for a private company. 

Bottom Line:I discussed the new law and its implications at the time of its passage in Florida’s recent special session. That said while many employers clearly got the message, like Disney, who completely rescinded the vaccine mandate for employees...clearly not all employers have received the message. I’ve continued to receive notes similar to this one near daily. Florida’s new law pertaining to COVID-19 vaccine mandates is clear. Here are the high points:

  • Public sector employers are banned from mandating COVID-19 vaccinations 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 five opt-outs 

Now, with this conversation focusing on a private employer, I’ll dive in deeper regarding what’s allowed and what those five opt outs happen to be. SHRM, the Society For Human Resource Management, the Priemer HR organization nationally, has this specific guidance for Florida’s employers regarding the exemptions afforded to Florida’s private sector employees. These are the exemptions mandated by Florida law:

  • Medical reasons. This includes for reasons of pregnancy or anticipated pregnancy. To receive a medical exemption, an employee must submit a signed statement by a physician or physician assistant that vaccination is not in the best interest of the employee. While not addressed in the legislation, we suspect that this exemption will function similarly to those provided for disabilities under the Americans with Disabilities Act (ADA).
  • Religious reasons. An employee must present a statement that they decline the vaccine because of a "sincerely held religious belief." Although that term is undefined, it likely refers to sincerely held religious beliefs as understood under federal law.
  • COVID-19 "immunity." An employee must show "competent medical evidence" that they have immunity to COVID-19, which is documented by the results of laboratory testing on the employee. The law does not state what "immunity" is but directs the Department of Health to establish a standard for determining that immunity.
  • Periodic testing. An employee must provide a statement indicating that they will comply with the employer's requirement to submit to regular testing. Although "regular testing" is not defined, the law directs the Department of Health to adopt emergency rules specifying requirements for frequency of testing. Importantly, any testing must be at no-cost to the employee. Because this exemption has no ties to existing federal law such as Title VII of the Civil Rights Act of 1964 and the ADA, and the law does not address any "undue hardship" defense, it is likely that an employer cannot decline to pay for the testing if there is a charge the employee would otherwise incur.
  • Agreement to use PPE. An employee must present a statement that they agree to comply with the employer's reasonable written requirement to use employer-provided personal protective equipment (PPE) when around others. "Personal protective equipment" is not defined. It is unclear whether the use of the term would implicate OSHA regulations or CDC guidance on "personal protective equipment."

One of the points I emphasized at the time of the signing of the new law was Florida’s recognition of natural immunity. As noted, natural immunity is now legally on par with those who’ve been fully vaccinated for COVID-19. As SHRM noted, you must be able to prove to your employer that you’ve recovered from COVID-19 to use that exemption. Given the newness of the law, the Florida Department of Health has yet to define what specifically constitutes proper proof. That said, employment law has been consistently clear over the years. Where there is grey territory, the burden is on the employer, not the employee, to justify punitive actions taken. Given that aside from the natural immunity exemption you qualify for based on your account, you could also request the option of testing or the willingness to use PPE. 

It’s because of how open-ended the exemptions in Florida’s new law are, that many large employers who had vaccine mandates in place, like Disney, have abandoned them in our state. You asked, in my fact-based opinion, if an employer mandate which only allowed for a medical or religious exemption is illegal in Florida. The answer is without question, yes. You are legally entitled to each of the exemptions explained above and your employer retains no legal authority to deny any of them to you. Now, I know it’s one thing to cite the law and another to be the person addressing this uncomfortable and unsettling situation with your employer, the situation you find yourself in, but the law’s the law. If push comes to shove, you’re on solid ground provided you’re willing to hold up your end of the bargain under the law. 


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