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January 19, 2022
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Florida limits Covid vaccine mandates, challenging Biden’s requirements for private businesses

Florida limits Covid vaccine mandates, challenging Biden's requirements for private businesses
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Florida Governor, Ron DeSantis holds a press conference to announce the opening of a monoclonal antibody treatment site to help COVID-19 patients recover at Camping World Stadium in Orlando.

Paul Hennessy | LightRocket | Getty Images

Florida Gov. Ron DeSantis signed legislation on Thursday that aims to roll back the implementation of President Joe Biden’s Covid-19 vaccine and testing requirements for private businesses in the Sunshine State.

DeSantis had called a special session of the legislature to pass four bills challenging Biden’s policy. During a press conference Thursday, the governor said the goal of the legislation is to protect people from losing their jobs if they choose not to get vaccinated.

“We’re respecting people’s individual freedom in this state,” DeSantis said at a Honda car dealership in Brandon, Florida. “This is a personal choice, that’s the science based approach, to say that this should be a personal choice,” DeSantis said.

The Florida laws ban businesses from imposing Covid vaccine mandates unless they provide certain exemptions. They also require DeSantis to develop a plan to withdraw Florida from federal oversight by the Occupational Safety and Health Administration and develop a state plan for worker safety.

OSHA, which polices workplace safety for the Labor Department, issued emergency workplace safety rules this month that require businesses with 100 or more employees to ensure their employees are vaccinated or submit to regular Covid testing by Jan. 4.

Under the Florida laws, business that fire an employees on the basis of a vaccine mandate can face fines of $10,000 per violation if they have less than 100 employees and $50,000 if they have more than 100 employees. Businesses can avoid the fines if they reinstate the employee with backpay.

The Biden policy does not require businesses to fire employees who do not follow the rules. The rules leave discipline up to the discretion of the companies. The White House has encouraged businesses to educate employees who do not follow the rules on the importance of vaccination and testing.

However, sample implementation plans posted on OSHA’s website list unpaid leave and termination as examples of potential consequences that workers could face.

The Labor Department’s top lawyer, Seema Nanda, has said the federal OSHA rules supersede any state laws that prevent businesses from implementing the requirements on vaccination and testing.

While Florida is allowed to develop its own state-based workplace safety plan, it must be submitted to OSHA for clearance, and its workplace safety standards must be at least as effective as the federal requirements, according to the law that established OSHA.

Under the Florida legislation, businesses are required to exempt employees from a mandatory vaccination policy if they have Covid immunity from prior infection, are tested periodically for the virus or choose to wear personal protective equipment provided by the company.

“We recognize people who have natural immunity,” DeSantis said. “Whatever a private employer wants to do, you’re automatically exempt because of natural immunity.”

People with sincerely held religious beliefs or medical conditions can also opt out of company’s mandatory vaccination policy, though the Biden policy already provided exemptions in those instances.

Under Biden’s policy, people who were previously infected with the virus cannot opt out of the vaccination and testing requirements. They must either choose to get vaccinated or submit a negative Covid test weekly to enter the workplace.

OSHA said it decided against exempting people who were previously infected and are unvaccinated, because scientific data is limited and it isn’t feasible for employers to administer such an exemption. The agency cited a study in Kentucky that found unvaccinated individuals who were previously infected are 2.3 times more likely to get reinfected than people who got vaccinated after their prior infection.

The Florida legislation limiting vaccine mandates comes after the U.S. Court of Appeals for the Fifth Circuit in Louisiana halted the implementation of the Biden rule pending review. Twenty-six Republican attorneys general, including Florida’s, have filed lawsuits seeking to overturn the requirements.

Those lawsuits were consolidate into a single case in the conservative-leaning Sixth Circuit Court of Appeals in Ohio earlier this week. Private companies and national industry groups, including the National Retail Federation, the American Trucking Associations and the National Federation of Independent Business, have also filed suits.

“The ultimate results of the OSHA lawsuit in the Sixth Circuit is that thing is going to crash and burn, it is going down. I’d be willing to put a lot of money on that,” DeSantis said.

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