Florida Expands Ban on Vaccination, Testing and Masking Mandates | Proskauer – The Law and the Workplace

On May 11, 2023, Governor Ron DeSantis signed into law a “medical freedom” bill (SB 252), amending and expanding existing Florida statute Section 381.00316, which prohibits businesses from requiring their customers and patrons who provide documentation of vaccination against COVID-19. state. Under the amended law, businesses in Florida will be prohibited from discriminating in any way against an individual (no longer just a customer or employer) based on vaccination status and requiring face masks and COVID-19 testing. The new law enters into force on June 1, 2023.

Notably, some of the new law’s prohibitions are not limited to COVID-19 vaccines or response efforts. The vaccine provisions extend to all vaccines with emergency use authorization and all messenger ribonucleic acid (mRNA) vaccines, and the limitations on the use of masks/face coverings are also broadly worded. As such, the restrictions listed below will be in place and may affect businesses’ response to any future pandemic or public health emergency should it occur.

Under the amended law, no business entity in Florida (as defined below) may:

  • Require any person to provide any documentation certifying vaccination with a COVID-19 vaccine (or any other emergency use or mRNA vaccine) or recovery from COVID-19 infection;
  • Require a COVID-19 test to gain access, entry, or service of business operations in Florida or as a condition of hiring, promotion, or continued employment with the business entity;
  • Firing or refusing to hire a person; deprive or attempt to deprive a person of employment opportunities; adversely affect a person’s status as an employee or as an applicant for employment; or otherwise discriminate against a person based on knowledge or belief of the person’s status in relation to vaccination with the COVID-19 vaccine (or any other emergency use or mRNA vaccine) or post-infection recovery of COVID-19, or the failure of a person to take a COVID -19 vaccine test;
  • Require a person to wear a face mask, face shield, or any other face covering that covers the mouth and nose; either
  • Denying a person access, entry, service, or admission to such entity or otherwise discriminating against a person based on such person’s refusal to wear a face mask, face shield, or any other covering face covering the mouth and nose.

The amended statute defines “business entities” broadly as any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in Florida. The term also includes charities, non-profit corporations, and all other businesses that do business in Florida.

If a business entity requires a person to receive a vaccine other than COVID-19, emergency use, or mRNA vaccine, the business entity must provide waivers and reasonable accommodations.

Under the two exceptions written into the law, the face mask, face shield, or any other face covering restriction may be maintained by: (1) health care providers and health professionals if they meet standards developed by the Florida Department of Health (DOH) and the Agency for Health Care Administration by July 1, 2023, and (2) commercial entities when a face mask, face shield, or any other face covering is required as safety equipment in accordance with the standards to be adopted by the Florida Department of Health, which is required by law to adopt emergency rules to develop those standards.

Employers who violate the amended law are subject to a fine of up to $5,000 for each individual and separate violation. The amended law does not limit the right of an aggrieved person to recover damages or other relief under any other applicable law.

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