Following the lead of other Republican Governors, Florida Governor Ron DeSantis has publicly stated his desire to take action against employer COVID-19 vaccine mandates. Speaking to a crowd late last week, Governor DeSantis called for a special session of the Republican-dominated state legislature to ban any mandates that force employees in Florida to get COVID-19 vaccines to keep their job.
The next legislative sessions begin on January 11, 2022, but Governor DeSantis said that the issue of employers firing employees over vaccination status "cannot wait until the regular legislative session next year." As such, Governor DeSantis would like to call a special session sooner to address the issue and ban an employer's abilities to mandate COVID-19 vaccines for their workforce.
Governor DeSantis also said that he is working with Attorney General Ashley Moody to contest any federal vaccine mandates. This would include, most notably, President Biden's "Path Out of the Pandemic" action plan requiring all employers with 100 or more employees to mandate COVID-19 vaccines or institute weekly testing. President Biden has instructed the Occupational Safety and Health Administration (OSHA) to issue an Emergency Temporary Standard on that issue. On October 12, OSHA finalized the initial draft of that order and sent it to the White House Office of Management and Budget for review, signaling that OSHA may issue a federal vaccine mandate soon.
Governor DeSantis's proposal comes about while a similar debate has been playing out in Texas, where Governor Greg Abbott ordered that employer vaccine mandates be blocked, even as proposed legislation to codify the same restriction failed to pass the Texas legislature before lawmakers adjourned the third special legislative session last week. Governor DeSantis, though, has proclaimed that Florida is no longer in a state of emergency, and therefore, he does not feel that he has the ability to issue an executive order. Instead, he wants to proceed through the state Senate by calling a special session as soon as possible.
As part of his slate of proposals, Governor DeSantis also expressed his desire to implement new rules clarifying that an employee fired over vaccine mandates is freed from any restrictive covenants and not considered as having been dismissed "for cause," so as to remain eligible for unemployment assistance. Consistent with his current approach, earlier this year, Governor DeSantis signed separate legislation banning "vaccine passports," but that legislation focused on consumers, not employees.
The vaccine landscape in Florida remains in flux, with conflicts simmering between the Biden Administration's objectives and those of Governor DeSantis within Florida. Florida employers should proceed cautiously with vaccine mandates and seek legal counsel to ensure they are compliant with all applicable laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act, among others. While Governor DeSantis's stated position is not official law and only politicking at this point, Florida employers with vaccine mandates already in place will need to evaluate their policies and monitor these developments.
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