Florida Issues Emergency Rule and FAQs on COVID-19 Vaccine Directive

After the passage of Florida Statute 381.00317 on Nov. 17, employers with employees in Florida were left with new rules relating to COVID-19 vaccination policies, in many instances contrary to the signaled direction of federal government rules and guidance. Moreover, this new Florida law includes vague language, few definitions and a promise of future clarification despite immediate applicability.

As previously discussed, the new Florida law prohibits private employers from imposing a "COVID-19 vaccination mandate" without providing individual exemptions allowing an employee to "opt out" of such mandate based on one of five reasons. While several questions still remain about implementation of this new law, the Florida Department of Legal Affairs, a department in the attorney general's office, issued a clarification that provides employers with some guidance.  Notably, the following terms have been defined in Rule 2ER21-1: "department," "Employee," "independent contractor," "private employer," and "functional equivalent of termination."  Additionally, the Department of Legal Affairs issued FAQs that drill down on some of the questions that private employers have had in navigating the vaccine mandate landscape. 

New Definitions

As noted above, the emergency rule provides some definitions to be used in interpreting the Florida law. 

Department. First, the term department, which is charged with enforcing the law, is defined as the Department of Legal Affairs.

Employee. Next, employee is defined as "any person who receives remuneration from a private employer for the performance of any work or service occurring within this state while engaged in any employment … whether lawfully or unlawfully employed."  It further specifically states that "employee" does not include an independent contractor, a volunteer or someone who serves in a private nonprofit agency without compensation other than expenses.

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

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

• Maintains a separate business with their own work facility, truck, equipment, materials, or similar accommodations apart from the private employer.
• Holds or has applied for a federal employer identification number.
• Receives compensation for services rendered or work performed and such compensation is paid to a business, 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 purposes of paying business expenses or other expenses related to services rendered or work performed for compensation.
• Performs work or is able to perform work for any entity in addition to or besides the private employer at their own election without the necessity of completing an employment application or process.
• Receives compensation for work or services rendered on a competitive-bid basis or completion of a task or a set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

(2) Alternatively, the individual can show any of the following:

• The person performs or agrees to perform specific services or work for a specific amount of money and controls the means of performing the services or work.
• The person incurs the principal expenses related to the service or work that they perform or agree to perform.
• The person is responsible for the satisfactory completion of the work or services that they perform or agree to perform.
• The person receives compensation for work or services performed for a commission or on a per-job basis and not on any other basis.
• The person may realize a profit or suffer a loss in connection with performing work or services.
• The person has continuing or recurring business liabilities or obligations.
• The success or failure of the person's business depends on the relationship of business receipts to expenditures.

It appears these requirements are intended to prevent employers from trying to misclassify an individual employee as a "1099 employee" to avoid the statute's requirements.

Private employer. The emergency rule next defines private employer to include anyone or any legal entity who employs employees within the state regardless of the form of legal entity.  Of import is the emphasis that the employer itself need not be in the state if there is an employee present in the state while doing work for the employer. There is no minimum number of employees required for this statute to apply.

Functional equivalent of termination. Last, the phrase functional equivalent of termination is also defined.  This definition is relatively restrictive, noting such act is met if an employee 1) resigns under duress or 2) the employer made working conditions so difficult or intolerable that a reasonable person in the employee's position would feel compelled to resign.  Notably, the second option tracks the concept of "constructive discharge" in other employment law settings and requires a high standard and burden of proof on the employee to be established. 

Other Questions Answered

FAQs issued by the Department of Legal Affairs describes in more detail the process available should an employee complain that an employer has violated the new Florida law, including an investigation allowing both parties to provide evidence and potentially an evidentiary hearing before the Division Of Administrative Hearings (DOAH) and potential resolution throughout the process.  Notably, the FAQs mention the Department does not have the authority to order reinstatement although an employer may be subject to a fine if the employee is found to have improperly terminated any employee.   

Lingering Questions

What is a vaccine mandate? The Florida law facially allows private employers to maintain vaccination mandates but states a "private employer may not impose a COVID-19 vaccination mandate … without providing individual exemptions" describing five potential exemptions (medical, religious, prior COVID infection, agreement to testing, and agreement to using PPE).  As explained in more detail in our prior ASAP, if an employee submits an "exemption statement" properly identifying the necessary information to select one of the five options, "the employer must allow the employee to "opt out" of the mandate.  Employers are then prohibited from terminating an employee based on a vaccine mandate (including the functional equivalent of termination). 

One major question mark has been what a "vaccine mandate" is under the Florida law.  As we previously opined, the words used by the legislature and rules of statutory construction suggest opt-outs must only be provided if there is a pure mandate.  Thus, if an employer has a hybrid policy allowing for vaccination or testing, such policy may not need to allow employees to opt out of the hybrid program for the reasons set forth in the Florida law. 

This important question is not answered nor even addressed in either the emergency rules issued or the FAQs.  Thus, while it is unclear how Florida may ultimately resolve this issue, the rules of statutory construction remain the same and employers may need to decide of whether the Florida statute applies to their particular vaccine program.  Employers should consult with legal counsel to determine how to proceed with vaccination mandates in Florida.

Nancy Johnson and Kimberly Doud are attorneys with Littler Mendelson in Orlando, Fla. © 2021 Littler Mendelson. All rights reserved. Reposted with permission.