“We are No Longer in a State of Emergency” in Florida – Or Are We?

Florida Governor Ron DeSantis took two bold moves on Monday related to government oversight of COVID-19 emergency standards while declaring “we are no longer in a state of emergency.”  The first, an extension of Executive Order 21-81 announcing certain prohibitions with respect to “vaccine passports,” was expected.  The second, Executive Order 21-102, purporting to suspend immediately all local COVID-19 restrictions and mandates on individuals and businesses, was less so. 

This latest EO touts state efforts in providing vaccines to its citizens and decrees preemption and immediate suspension of any county, state or municipal COVID-19 restriction or mandate on individuals and businesses.  The EO prohibits any county or municipality, for the duration of the state of emergency related to the COVID-19 pandemic, from renewing or enacting an emergency order or ordinance that imposes restrictions or mandates upon businesses or individuals due to the COVID-19 emergency.  In his announcement of this new EO, Governor DeSantis denigrated continuing COVID restrictions in other states (as well as those in certain Florida counties and cities) and hyped his own efforts to keep Floridians safe. 

Interestingly, the power of the Florida governor to overrule local emergency rules was granted to him in a newly enacted law he also signed on Monday—SB 2006.  Senate Bill 2006 restricted local government efforts to issue emergency orders, requiring that such orders be narrowly tailored and limited to 7-day increments up to a maximum of 42 days. SB 2006 also codifies the somewhat controversial but also largely ineffective prior EO prohibiting businesses from requiring consumers or customers to show documentation of vaccination (a “vaccine passport”) to obtain services from or access to a business.  The wording of EO 21-81 and the parallel wording of the new law, however, do not prohibit businesses from requesting either a vaccine passport or a recent negative COVID-19 test. 

After signing the new law and announcing his new EO, Governor DeSantis acknowledged businesses can still require masks, noting it will not affect mask requirements “in terms of what a supermarket [chooses] to do….”  Across Florida, many counties and localities, particularly urban centers, still had mask mandates and social distancing guidelines. For example, Miami-Dade and Broward counties still maintained more precise guidelines and mandates for employers and in other types of social gatherings. 

For now at least, the new law and the latest EO do not prevent a private sector employer from imposing health safety requirements on its own employees. Indeed, compliance with government-issued health standards and guidelines may be vital for employers seeking to avoid liability related to COVID-19. On March 29, Governor DeSantis signed into law Senate Bill 72 (2021), now section 768.38, Florida Statutes, to protect Florida individuals and businesses against lawsuits claiming COVID-19 related damages, injuries or death. Employers should review the newly enacted employer liability shield law, section 768.38, Florida Statutes, in order to take advantage of its protections.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.