As we relayed in our prior ASAP, Governor DeSantis signed HB-1B into law on November 18, potentially affecting all Florida employers and certainly causing many to reconsider any policies already adopted relating in any way to COVID-19 vaccinations.

The Florida Law

While the Florida Law prohibits public employers from imposing a “COVID-19 vaccination mandate” and invalidates any existing order, rule or policy imposing such mandate, for private employers, the law affirmatively acknowledges they may require employees to be vaccinated. However, a private employer may not impose a “COVID-19 vaccination mandate” without providing individual exemptions allowing an employee to “opt out” of such mandate based on one of five reasons. 

At first blush, the new law appears to force all private employers in Florida to choose an employee’s option to not be vaccinated over safety measures it determines necessary and appropriate for its business.  However, upon reflection of this law, its failure to define the term “COVID-19 vaccination mandate” becomes significant in its application to employers.

COVID-19 Vaccination Mandate

When a statute can be construed according to its plain meaning, it will be. Even when the terms of the statute are ambiguous, courts consider the language, structure, and purpose of the statute. Indeed, every word, phrase, sentence, and part of a statute must be given significance and effect, where possible. Here, the language of the new law provides: “A private employer may not impose a COVID-19 vaccination mandate for any full-time, part-time, or contract employee without providing individual exemptions that allow an employee to opt out of such requirement on the basis of . . . periodic testing . . . .” (emphasis added). The term mandate is undefined. So, what type of mandate is really covered under this new law?

Construing section 381.00317(1), Florida Statutes, as a cohesive whole, and to give the statutory design force and effect in application, the mandate at issue in Florida’s new law can only be a pure vaccination mandate and not a vaccinate-or-test policy. This is true because the drafter included as an opt-out the ability to test periodically. If the vaccination mandate contemplated under the new statute was intended to include a vaccinate-or-test policy, such a carve-out would be unnecessary. It is a basic rule of statutory construction that the Florida Legislature does not intend to enact a useless provision – and the Florida Legislature knows how to say what it means.

The plain meaning of the term “mandate” is to order or require – to make mandatory. Under a vaccination-or-test policy, employees have a choice whether to receive the COVID-19 vaccination, or to test periodically. Under a vaccination mandate, the employee would have no choice and would instead be required (i.e., mandated) to vaccinate or face possible separation from employment. Courts will not give a statute a literal interpretation producing an unreasonable or ridiculous result.

So, using the plain language of the new law as providing its intended meaning, if a Florida employer has a vaccination mandate in place (without a choice to test) and it is not otherwise subject to a preemptive federal rule (federal contractor rule or CMS rule), it must then either ensure its vaccination mandate allows for opt outs as described in our prior ASAP or face potential liability and fines.

Certainly, in these uncertain and untested times, if you have any questions as to the application of this new law to your workplace, it is advised to consult with your legal counsel.