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Starting on June 1, Florida employers are prohibited from discriminating against an individual based on vaccination status or refusal to take a COVID-19 test or wear a face mask. The stated goal of SB 252, which amends Florida Statute § 381.00316, among others, is to prevent deprivation of employment opportunities and discrimination based on an individual’s healthcare choices. This law creates protections beyond the reasonable accommodations for religious and medical reasons already provided by federal and state law.



What changed?



When facing the COVID-19 pandemic, many employers, following the Centers for Disease Control and Prevention’s lead, created policies and procedures requiring employees to comply with guidelines published by the agency. Those guidelines included, among other things, vaccinations and masking.



Currently, Florida law bars businesses from requiring documentation of vaccination status from customers and patrons. The new law, which applies to “any person” rather than simply to “customers” and “patrons,” expands the scope to include employees and applicants.



What’s the rule now?



In addition to other prohibitions, the law precludes “business entities” (which encompasses any business operating in the state, including charitable and other not-for-profit organizations) from:



<ul>
<li>Requiring any person “to provide documentation certifying vaccination … or post-infection recovery” or requiring “a COVID-19 test to gain access to, entry upon[] or service from the business operations” in the state.</li>



<li>Requiring any person to wear facial coverings that cover the mouth and nose “or otherwise discriminate against a person based on such person’s refusal to wear a facial covering.”</li>



<li>Requiring a COVID-19 test “as a condition of contracting, hiring, promotion[] or continued employment.”</li>



<li>Taking adverse action against any employee or applicant based on knowledge or a belief of the person’s COVID-19 vaccination or post-infection recovery status or failure to take a COVID-19 test.</li>
</ul>



While the law provides an exception for healthcare providers and for entities where a facial covering is required equipment, there are conditions imposed on healthcare providers and practitioners that mandate facial coverings. Fla. Stat. §408.824. Specifically, by August 1, healthcare providers and practitioners requiring any individual to wear a facial covering must establish policies and procedures that comport with those created by the state’s Agency for Health Care Administration (AHCA) and Department of Health (DOH). Such policies and procedures must be displayed on the entity’s website or conspicuously in “the lobby of their health care service setting.”



Under the new law, the state’s Department of Legal Affairs (DLA) “may impose an administrative fine not to exceed $5,000 for each individual and separate violation.” The DLA has the authority to investigate violations through, among other things, subpoenas, interviews and depositions. The law also permits aggrieved individuals “to recover damages or other relief under any other applicable law.”



Bottom line for employers



Employers should review their current protocols and policies to determine whether they impose any documentation, testing or masking requirements that conflict with the new law. Employers should be on the lookout for upcoming developments by the DOH and AHCA regarding facial covering standards for healthcare. The DOH and AHCA are required to establish standard policies and procedures by July 1.



Should you need to discuss this decision and its effect on your organization in greater detail, the BakerHostetler Labor and Employment Practice Group is available to assist.



Authors: Pat Muldowney, Meagan Martin, Natalie Mousa

A Changing Atmosphere for Navigating COVID-19 in the Workplace

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