Florida publishes emergency rule and FAQ on its vaccine mandate law | Small

Following the passage of Florida Statute 381.00317 on November 17, 2021, employers with employees in Florida were left with new rules for COVID-19 vaccination policies, in many cases contrary to the reported direction of the rules. and federal government directions. In addition, this new Florida law includes vague language, few definitions, and a promise of future clarification despite immediate applicability.

Like previously discussed, Florida’s new law prohibits private employers from imposing a “COVID-19 vaccination mandate” without providing for individual exemptions allowing an employee to “opt out” of such a mandate based on one of the five reasons. While several questions remain about the implementation of this new law, the Florida Department of Legal Affairs, a department of the Attorney General’s office, has released a clarification that provides some guidance to employers. In particular, the following terms have been defined in Rule 2ER21-1: “service”, “employee”, “independent contractor”, “private employer” and “functional equivalent of termination”. Additionally, the Department of Legal Affairs has published FAQs that delve into some of the questions private employers have been asking themselves in navigating the landscape of immunization mandates.

New definitions

As noted above, the Emergency Rule provides some definitions to use in interpreting Florida law.

department

First, the term department, which is responsible for law enforcement, is defined as the Department of Legal Affairs.

Employee

Following, employee is defined as “any person who receives remuneration from a private employer for the performance of work or service performed in that State while exercising an employment … whether legally or illegally employed”. It further specifically states that “employee” does not include an independent contractor, volunteer, or person who serves in a private, non-profit agency without compensation other than expenses.

By further describing this “exemption” for “independent contractors”, the emergency rule sets a high bar for what an independent contractor is and which is different from the definition that has been developed in case law over the years. year. Specifically, the rule requires that in order to be an independent contractor under Florida law, the individual must either:

(1) Meet four or more of the following criteria:

  • maintains a separate business with its own work facilities, trucks, equipment, materials or similar accommodation apart from the private employer;
  • holds or has applied for a federal employer identification number;
  • receives remuneration for services rendered or work performed and this remuneration is paid to a company, other than the private employer, rather than to an individual;
  • holds one or more bank accounts in the name of a business entity, other than the private employer, for the purpose of paying business expenses or other expenses related to services rendered or work performed for remuneration;
  • performs work or is able to perform work for any entity in addition to or in addition to the private employer at their own option without the need to complete an employment application or process; Where
  • receives remuneration for work or services rendered on the basis of a tender or for the completion of a task or set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

(2) Alternatively, the employee can show any from the following:

  • The person performs or agrees to perform specific services or works for a specific amount of money and controls the means of performing the services or works;
  • The person incurs the main expenses related to the service or work that he performs or undertakes to perform;
  • The person is responsible for the satisfactory completion of the work or services that he performs or undertakes to perform;
  • The person receives remuneration for the work or services provided for a commission or on a per-job basis and not on any other basis;
  • The person may make a profit or suffer a loss in connection with the performance of works or services;
  • The person has ongoing or recurring business responsibilities or obligations;
  • The success or failure of a person’s business depends on the ratio of business revenues to expenses.

These requirements appear to be aimed at preventing employers from trying to falsely classify an individual employee as a “1099 employee” to avoid the requirements of the law.

Private employer

The state of emergency then defines private employer to include any person or legal entity that employs employees within the state, regardless of the form of legal entity. It is important to stress that the employer itself does not need to be in the state if there is an employee present in the state while working for the employer. There is no minimum number of employees required for this law to apply.

Functional equivalent of termination

Finally, the sentence functional equivalent of termination is also defined. This definition is relatively restrictive, noting that such an act is observed if an employee 1) resigns under duress or 2) the employer has made working conditions so difficult or intolerable that a reasonable person in the position of employee would feel compelled to resign. Notably, the second option follows the concept of “constructive dismissal” in other labor law frameworks and requires setting a high standard and burden of proof for the employee.

Answers to other questions

The FAQ published by the Department of Legal Affairs describes in more detail the process available if an employee complains that an employer has violated Florida’s new law, including an investigation allowing both parties to provide evidence and potentially a hearing. evidence before the Administrative Hearings Division (DOAH) and potential resolution throughout the process. Notably, the FAQs state that the ministry does not have the power to order reinstatement, although an employer may be subject to a fine if it is found that the employee has inappropriately terminated an employee.

What remains unanswered

What is a vaccination mandate?

Florida law ostensibly allows private employers to maintain vaccination mandates, but states that a “private employer cannot impose COVID-19 vaccination mandate … Without providing individual exemptions ”describing five potential exemptions (medical, religious, previous COVID infection, approval for testing and approval for use of PPE). As explained in more detail in our before as soon as possible, if an employee submits a “declaration of exemption” correctly identifying the information necessary to select one of the five options, “the employer must allow the employee to” opt out “of the mandate. Employers are therefore prohibited from dismissing an employee on the basis of a vaccination mandate (including functional equivalent of termination).

A major question mark has been what a “vaccine warrant” is under Florida law. Like us previously notified, the terms used by the legislator and the rules of interpretation of the statutes suggest that exemptions should be envisaged only if there is a pure mandate. Thus, if an employer has a hybrid policy allowing vaccination or testing, that policy may not need to allow employees to opt out of the hybrid program for the reasons set out in Florida law.

This important question is not answered or even addressed neither in the published emergency rules nor in the FAQ. So, while it is not clear how Florida can ultimately resolve this issue, the rules of statutory interpretation remain the same and employers may need to decide whether Florida law applies to their vaccination program. particular. Employers should consult with legal counsel to determine how to proceed with Florida vaccination warrants.

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