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Q&A – What Happens to Florida’s Law Banning Vaccine Mandates Based on SCOTUS Ruling?
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Today’s entry: @brianmuddradio What’s the deal with Florida’s law on vax mandates if SCOTUS backs the Biden administration? Are we still protected with the new Florida law regardless?
Bottom Line: In a word, no. Should the US Supreme Court rule in favor of the Biden administration's COVID-19 vaccine mandate policy Floridians would not be protected under the recently passed law banning vaccine mandates without numerous opt-out options. The reason is due to how Florida’s workplaces are currently regulated in the case of private employers, and due to most medical service providers in Florida receiving federal funds, in the case of healthcare workers. While we await the Supreme Court’s ruling on the two-vaccine mandate cases before it, the one applying to private employers with 100 or more employees and the separate one applying to healthcare workers at medical establishments which accept federal funds, I’ll explain why this is the case. The back story is relevant not just in this instance but for any future instances of federally issued mandates for the workplace.
I’ll start with the case involving healthcare employees because it’s the most straightforward of the two. The Biden Administration's healthcare employee mandate is being administered through CMS, the Center for Medicare and Medicaid Services. The rule flatly states that healthcare workers who work for healthcare providers which accept federal funds, through Medicare or Medicaid programs, must be vaccinated against COVID-19. According to the latest figures from the CDC, roughly 84% of healthcare providers accept Medicare, with 69% accepting Medicaid. So, if the rule is upheld it wouldn’t impact all healthcare employees but obviously the vast majority. Notably in healthcare, vaccine mandates have long been applied to employees by employers well prior to the pandemic. It’s been common for health systems to apply mandates for annual flu shots for decades. In that regard it’s likely that if the Supreme Court were to uphold one of the two mandates – the one for healthcare employees would be the most likely as it’s a profession which commonly includes vaccine mandates as a term of employment. That obviously stands in contrast to the balance of private employers who’ve not previously mandated vaccinations as a condition of employment. It’s much harder to suggest that an employee who was employed without consenting to vaccination status must suddenly consent to a vaccination to retain employment in that capacity. This is a philosophical argument which potentially carries legal weight. And that takes me to the private employer case.
As is widely known the Biden Administration's private employer mandate applies to employees working for private employers with 100 or more employees. The government agency which issued and is tasked with enforcement of the mandate is OSHA. That’s key in the context of Florida. Should the Supreme Court uphold the Biden vax mandates Florida’s new law regarding private employers would be ineffectual. That’s due to OSHA being the regulating agency over private employers in the state of Florida. If federal policy is deemed legal, a state can only make more restrictive policy. Of course, Florida’s law goes in the other direction. This is why in the same state session which featured Florida’s new laws to ban vaccine mandates, the state also passed a law to decouple from OSHA.
Currently, there are 22 states and Puerto Rico, which have decoupled from OSHA by creating their own state agencies to regulate workplaces. Florida, of course, isn’t one of those but we’re now working in the direction to try to get there. In the recent special state session Florida passed a law to begin a multi-year process to attempt to create its own state agency which would allow the state, as opposed to the federal government, to regulate its employers. The key is that the federal government has to agree to, and authorize, the plans set forward by the state. There’s no guarantee of an outcome and it certainly won’t happen in time to make a difference in the near-term. If Florida were one of the 22 self-regulated states, we may not have been beholden to OSHA’s vax mandate rule unless we wanted to be – at least without a heavy dose of judicial activism. It would likely require the Supreme Court not only upholding the vaccine mandate but to broadly issue a determination that it should apply to state-regulated agencies as well.
Some have scoffed at the idea of Florida starting the process to self-regulate private employers as something of a political stunt. After all, even if successful in the effort it’ll not happen in time to make a difference in the current pandemic, but that’s not really the point of it. As we’re now in an era in which broad executive authority is being used to attempt to exact outcomes with employers and employees at the local level, making the move could help protect Floridians from any future federal mandates the state deems an overreach. So that’s the whole ball of wax. And yes, interested Floridians are very much invested in the Supreme Court's rulings on these cases.