Florida Ban on Requiring Vaccine Passports Banned (For Now)

Florida employers can require employees to obtain COVID-19 vaccinations, submit records of such vaccination, and can implement other safety measures for their workplaces, notwithstanding national publicity suggesting that recent Florida rules, orders, and laws prohibit or discourage these public health measures. As the pandemic worsens it is important for employers to understand both the specific terms and the limits of Florida’s enactments.

How Did We Get Here?

On April 2, 2021, Florida Governor Ron DeSantis issued an executive order prohibiting businesses in Florida from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business.” A month later, the Florida Legislature passed, and the governor signed into law, a bill applying that prohibition to all business entities, enforceable by imposition of a fine up to $5,000 per violation effective July 1. (§ 381.00316, Fla. Stat.)

On July 30, 2021, assertedly “in response to several Florida school boards considering or implementing mask mandates in their schools,” Governor DeSantis issued another executive order (E.O. 21-175), directing the Florida Departments of Education and Health to take action necessary to ensure that safety protocols for controlling the spread of COVID-19 allow parents to decide whether their children should wear masks in school.  This EO threatens to withhold state funding from school districts that violate such rules. On August 6 the Florida Department of Health announced a rule allowing parents to opt out of a school district’s mask mandate. With schools opening this week, many school districts have mandated masks unless a parent opts out of the requirement. 

On August 8, United States District Judge Kathleen M. Williams in the Southern District of Florida granted an injunction against enforcement of Florida Statute 381.00316 against cruise lines that want to require all passengers to provide proof of vaccination. Judge Williams found that the law’s prohibition against such a requirement is likely to be found unconstitutional as an impermissible restriction on free speech.  While her opinion is limited to the cruise lines that filed the lawsuit, her reasoning the state cannot restrict businesses from asking for documented proof of vaccinations is also likely to be applied in similar circumstances. 

In the last week, several public school students throughout Florida have also filed legal actions challenging EO 21-175 and arguing that prohibition of school mask mandates not only impermissibly infringes on free speech, but also exceeds the governor’s constitutional authority, as the power of regulating schools rests with local school districts under the Florida Constitution. While no court has ruled on these challenges yet, an outcome similar to that in the cruise line case may squelch any further attempt to prohibit school mask mandates. 

Where Does This Leave Employers?

Given all these developments, it is understandable that the general public is confused about whether and to what extent business entities and local governments can mandate public health restrictions in an effort to control the pandemic. Areas of confusion include general masking requirements, the difference between asking for vaccination status versus asking for vaccination documentation and whether certain prohibitions can be applied to customers versus employees. Such confusion can make it harder for employers to implement safety rules and obtain buy-in from employees.   

To clarify: Florida Statute 381.00316 does not prohibit public or private employers in Florida from requiring their employees, vendors, or independent contractors to be vaccinated or to provide COVID-19 vaccination documentation. No Florida statute or order prohibits public or private employers from requiring employees to wear masks or socially distance. Executive Order 21-175 does not prohibit school districts from requiring employees to wear masks. Notwithstanding any of the recent developments, Florida employers have a general duty codified in the Occupational Safety and Health Act to keep their employees safe.

With the new resurgence of COVID-19 infections in Florida far outpacing the worst infection rates to date, more companies are considering the adoption of rules requiring mandatory vaccination and vaccination proof. Judge Williams’s order against Governor DeSantis’s attempt to prohibit entities from asking for vaccination documentation strongly suggests that the right and responsibility of corporate entities in Florida to maintain reasonable safety standards, including such measures, may be constitutionally protected. Employers are taking note of Judge Williams’s express statement at several points in her nearly 60-page order that nothing prohibits employers from taking these reasonable safety steps.  More litigation of these and related issues is, of course, likely in the future.

There remain serious legal and human resource considerations for employers to consider before implementing mandatory vaccination policies or incentive programs in Florida and elsewhere.  Any employer operating in Florida considering a move in this direction would be strongly advised to work with experienced employment counsel to ensure such policies comply with state and federal law, including allowance for appropriate accommodations, and are otherwise properly implemented.   

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.