Florida Adopts Emergency Rules and FAQs to Clarify Its COVID-19 Vaccination Mandate Act | Foley & Lardner LLP

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On November 18, 2021, Florida Governor DeSantis signed Law 1B of the House of Representatives, which imposes a series of requirements on employers in the Sunshine State attempting to impose COVID-19 vaccination regulations on their employees. The law itself posed many questions to employers about the scope of the law, the definition of key terms and the methods of enforcement.

Some of these questions were answered on December 2, 2021 when the Florida Department of Legal Affairs issued Urgency Rule 2ER21-1 (the “Emergency Rule”), which defined various terms used in Florida law and established the complaint procedure for appeals by private employers Vaccine mandates under Sections 381.00317 (3) and (4), Florida Statutes. The Department of Legal Affairs has also provided a list of responses to 11 relevant Frequently Asked Questions (FAQs). These FAQs and the urgency rule come at a time when courts are still deciding on legal challenges against the various COVID-19 mandates issued by the federal government, which further contributes to the (seemingly) ever-changing landscape of COVID-19 vaccine mandates.

Definitions of emergency rules

Specifically, the Ministry of Justice has defined the following five terms in the emergency rule: “department”, “employee”, “independent contractor”, “private employer” and “functional equivalent to dismissal”.

An “employee” within the meaning of this emergency rule is defined as “any person who receives remuneration from a private employer for the provision of a work or service carried out in this state …” The urgency rule expressly states that an “employee “Is not an” independent contractor “,” volunteer “or” or is someone who works in a private not-for-profit agency without compensating other than costs “.

The plain language of this definition also makes it clear that a person must be performing work or services in the state of Florida to be considered an “employee” and that the location of the employer is not relevant. This definition also suggests that applicants are not considered “employees” and therefore are not covered by Florida law since an applicant does not have “benefits”[] any work or service. “

In turn, an “independent contractor” – exempt from Florida law – is defined as someone who meets the following requirements: four of the following six criteria:

  • maintains its own business with its own workplace, truck, equipment, material or similar premises next to the private employer;
  • has or has applied for a federal employer identification number;
  • receives remuneration for services or work performed and this remuneration is paid to a company other than the private employer and not to a natural person;
  • maintains one or more bank accounts on behalf of a company other than the private employer for the purpose of paying business expenses or other expenses related to services or work performed for consideration;
  • can do or carry out a job alongside or alongside the private employer of his own choosing without having to fill out a job application or procedure; or
  • receives remuneration for work or services performed on the basis of a tender or the completion of a task or a set of tasks in the sense of a contractual agreement, unless this contractual agreement expressly states that an employment relationship exists.

Alternatively, someone can be considered an “independent contractor” if one of the following conditions is met:

  • The person performs or undertakes to perform certain services or work for a certain amount of money and controls the means of performing the service or work;
  • The person incurs the main costs in connection with the service or work that he or she provides or has consented to be performed;
  • The person is responsible for satisfactorily performing the work or services that he or she undertakes to perform;
  • The person receives remuneration for work or services performed on a commission basis or per job and not on any other basis;
  • The person may make a profit or suffer a loss in connection with the performance of work or services;
  • The individual has ongoing or recurring business liabilities or obligations; or
  • The success or failure of the business depends on the ratio of business income to expenses.

The definition of “independent contractor” in the Emergency Rule is stricter than that used to determine whether someone is an “independent contractor” in other contexts, including for example for federal tax purposes.

The definition of “employer” in the emergency rule also differs from other legal definitions of “employer”, as this definition not Include an employee threshold, nor does the employer have to be Florida resident. This definition only requires that the legal entity “employs”[] Employees in this state. ”As the FAQs indicate, employer size only plays a role in determining the fine for violating Florida law.

Finally, the “department” is defined as “the legal affairs department” and the “functional equivalent of dismissal” is defined as occurring in two scenarios: (i) when the employee resigns under duress; and (ii) if “the employer’s actions have made working conditions so difficult or intolerable that a reasonable person in the position of employee would be compelled to resign”. The FAQs add additional clarity to this definition by advising that Florida law may also impose a fine on employers if the employer has taken “adverse action against” [an employee] that is the functional equivalent of a discharge. “

Complaint procedure described in the emergency rules

The urgency rule also provides for an administrative complaint and investigation procedure. In short, each complainant must file a legally sufficient complaint with the Department of Legal Affairs (in accordance with certain formalities and filing requirements). The Department of Legal Affairs then investigates the complaint before submitting an investigative report to the Attorney General’s agent. If the Department of Legal Affairs determines that there is a likely reason to determine that Florida law has been violated, it must file a formal administrative complaint and bring its case to an evidence hearing before an administrative judge. The administrative judge will then issue a recommended order to the Legal Department, which will issue a final order based on those recommendations. During this process, the Department of Legal Affairs also has the option to impose sanctions through consent orders. A more detailed discussion of the complaint and investigation process is provided in the Emergency Policy.

Conclusion

Although the Emergency Rule and FAQs provide additional guidance on Florida law, there are still loopholes and conflicts between Florida law and federal regulations – especially given recent court rulings on legal challenges to federal regulations. As Florida employers consider vaccination regulations and guidelines, and take steps to comply with various laws, rules, and regulations, we recommend monitoring legal decisions and issuing additional guidance to determine how best to comply with them.

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