Vaccine PassportAt the start of summer, Governor Ron DeSantis declared that Florida is “no longer in a state of emergency.” This statement preceded a bill banning vaccine passports, and two executive orders suspending local government COVID-19 restrictions.

For employers, this doesn’t mean you should rush to discard your face marks requirement, nor should it impact your decision to mandate vaccines. Employers remain free to implement safety features they feel needed.

New York vs. Florida

Many Northeastern states have begun experimenting with COVID passports. For instance, New York City now requires at least one dose of a COVID-19 vaccine for entry to indoor dining, gyms, and entertainment performances. For better or worse, Florida has gone in the opposite direction. Florida law now prohibits businesses from implementing these measures with respect to customers. Specifically, the new law says that “business entities,” including for-profit and not-for-profit entities, cannot require that patrons or customers provide documentation certifying that they received the COVID-19 vaccine or certifying that they have recovered from the virus to enter or receive a service from the business.

EEOC’s View


Continue Reading What Florida employers need to know about the vaccine passport ban

Waitress in a maskIn keeping with his candidate promises, President Biden’s new appointees issued new COVID-19 regulations. Under the prior administration, the EEOC concluded an employer could require an employee to be vaccinated as a condition of employment. While subject to certain limitations, such as accommodations for medical conditions and religious objections, this was a significant win for employers as they tried to return to normalcy.

Lack of consistency among government agencies

The EEOC’s pronouncement was seen as giving employers the approval to encourage vaccination. BJ Zarvis of Pewter Mug restaurant, “I saw this information as a way to give me, my employees, and my customers some comfort knowing that they were coming to a safe place.”

But then OSHA, under the new Biden administration, announced that any employer that created a mandatory vaccination plan would be subject to OSHA reporting rules if there were any adverse effects from the vaccination. Any lost days would be reportable, which potentially subjects the employer to higher insurance rates and fines. “When I heard about OSHA’s position,” said Zarvis, “I decided it wasn’t worth it to make it mandatory.”

Luckily, OSHA’s position took considerable heat from the public, across the political spectrum, such that it finally announced it was rolling back its position and not making adverse effects from a mandatory vaccination program reportable. So employers like Zarvis can again consider the pros and cons of making vaccinations mandatory.

What is keeping employers from mandating vaccinations?


Continue Reading How are Florida employers keeping up with ever-changing vaccine requirements?

Wine GlassesOn May 13, 2021, Florida Governor Ron DeSantis signed into law Senate Bill 148, which allows restaurants or other alcohol beverage vendors to sell alcoholic drinks to-go.  No, this does not mean that Florida is an open container state; possession of an open alcoholic container in Florida is still illegal under Florida Statutes, section 316.1936 and 856.011. However, customers who want to order take-out from their favorite restaurant can now also bring home their favorite cocktail, providing the restaurant meets certain requirements.

The alcoholic drinks to-go initially started through one of DeSantis’s emergency orders as a way for struggling restaurants during the COVID-19 pandemic to increase their sales. “Alcoholic drinks to-go became an important source of revenue for restaurants that were trying to survive during the pandemic,” DeSantis noted. Throughout the pandemic, restaurants were some of Florida’s businesses that were most affected. Florida Representative Josie Tomkow stated, however, that the new law

allows for restaurants to continue to offer alcohol-to-go as an option. This pro-consumer, business-friendly bill will help support our restaurant industry and its tens of thousands of employees.”

Requirements


Continue Reading I’ll Take it To-Go: New Florida Law Makes To-Go Alcohol Sales Permanent Effective July 1

COVID-19 vaccineOn June 12, 2021, a federal judge entered an Order dismissing a hospital employee’s lawsuit attempting to block a hospital policy requiring employees to receive a COVID-19 vaccine. Houston Methodist Hospital announced a policy on April 1, 2021, mandating that all employees receive one of the COVID-19 vaccines. The hospital eventually suspended 178 employees without pay for their refusal to get vaccinated. Jessica Bridges, along with 116 other hospital employees, brought suit to block the vaccine requirement and to overturn their suspensions and possible terminations.

At the beginning of 2021, there was much speculation throughout the country regarding whether or not employers could require employees to receive a COVID-19 vaccine. In a previous article, Can Employers Require Employees to Receive the COVID-19 Vaccine?, I indicated that the answer appeared to be yes, with some exceptions. Now U.S. District Judge Lynn N. Hughes appears to have confirmed this through his dismissal of Bridge’s lawsuit.

Plaintiff’s argument opposing COVID-19 vaccine


Continue Reading Federal judge upholds employer’s COVID-19 vaccine requirement

COVID-19 VaccineWith three coronavirus vaccines approved for use in the United States, an end to the pandemic appears in sight. But returning to normal comes with plenty of unknowns. For employers looking to reduce (or eliminate) virtual working, several pertinent questions are now surfacing.

Can I ask employees if they have been vaccinated?

The law generally prohibits employers from probing into an employee’s medical history. It is acceptable for a supervisor to ask if an employee is feeling OK or can complete work for the day. However, it is another story when an employer starts asking questions to determine if an employee is pregnant, diabetic, or suffering from some illness. The Americans with Disabilities Act (ADA) prohibits employers from forcing an employee to disclose disabilities or serious medical conditions.

Thankfully, the Equal Employment Opportunity Commission (EEOC) has removed any uncertainty about how the ADA applies in this context. According to recent guidance from the EEOC, employers are permitted to ask employees if they have been vaccinated and for documentation of the vaccine. Employers should, however, avoid health inquiries that probe into other areas not related to the vaccine, as this could run afoul of other employment laws relating to discrimination and disability.

Can I offer incentives for my employees to be vaccinated?


Continue Reading Coming Back to Work – Common Coronavirus Questions by Employers

Governor Ron Desantis issued an executive order prohibiting COVID-19 “vaccine passports” in Florida. The order prevents government entities from issuing “vaccine passports” or other standardized documentation for the purpose of certifying an individual’s COVID-19 vaccine status to a third party.

How does this order impact Florida business owners?

Further, this order prohibits businesses in Florida from requiring patrons to provide documentation certifying that the individual had a COVID-19 vaccination. Businesses still, however, can employ COVID-19 screening protocols and measures, such as requiring the use of a mask.


Continue Reading No COVID-19 “Vaccine Passports” for Florida

The Florida House of Representatives passed S.B. 72 in a decisive 83-31 vote, a bill that would give businesses and health care providers a legal safe harbor from COVID-19 injury and wrongful death lawsuits. Governor Ron DeSantis signed the bill into law this afternoon. The law retroactively applies to causes of actions that have accrued but does not apply in a civil action which is commenced before the effective date of the law (March 29).

The new law provides civil immunity to corporations, nursing homes, hospitals, schools, and houses of worship. The exception to the law would be a showing of gross negligence or intentional misconduct, both of which are very difficult standards to prove. The bill had its opponents, of course, namely, the plaintiff bar, as it creates significant legal hurdles for plaintiffs who wish to file lawsuits over coronavirus-related injuries.


Continue Reading COVID-19 Legal Safe Harbor Signed into Florida Law

Americans and the rest of the world are hoping that in 2021 every-day life will begin normalizing. With the rolling-out of the Pfizer and Moderna vaccines, many feel they can see the light at the end of the tunnel.

However, even though the vaccine has reinstated hope in many, it still raises additional questions. Many have wondered whether employers can make COVID-19 vaccination mandatory for their employees. The answer appears to be yes.

A guidance issued by the U.S. Equal Employment Opportunity Commission indicated that employers can require employee vaccination to go to work. However, this does not necessarily mean that an employee would be automatically terminated. For example, the employee may be entitled to work remotely. Employers also may have to make exceptions for employees with religious objections and disabilities.

Employers should proceed with caution

Although employers can mandate a COVID-19 vaccination, the questions remains whether they will or whether they should. It will likely be challenging for employers to ensure their employees comply with the mandate. Employers requiring the vaccine may also receive some push-back.


Continue Reading Can Employers Require Employees to Receive the COVID-19 Vaccine?

We are already in February 2021! Can you believe it? Our Tampa Bay Buccaneers were crowned Super Bowl Champs, spring is upon us, yet we are still wearing masks, vaccinations are being provided to Floridians as fast as possible, yet it still looks a lot like 2020 in many ways.

What’s happening in Florida Legislature?

  • New protections for health care providers. A senate committee has successfully cleared legislation on February 10, 2021, that would create COVID-19 liability protections for Florida health care providers. Senate Bill 74 (SB 74) was advanced with a 6-4 vote. The proposal would require plaintiffs to prove a provider acted with “gross negligence or intentional misconduct instead of simple negligence.” Further, the evidentiary standard would also be “clear and convincing evidence” as opposed to the much lower bar of the “greater weight of the evidence.” All in all, the legislation was proposed to provide protections to Florida’s health care industry. Other similar measures are being advanced through the Republican-controlled legislature to extend protections to schools, churches, and businesses.
  • Potential immunity from liability. Senate Bill 72 (SB 72) advanced through the Senate Judiciary and would provide liability protection to businesses to be applied retroactively to a newly filed lawsuit. Plaintiffs would be required to obtain affidavits from Florida physicians attesting that defendants’ acts or omissions caused the damages, injuries or deaths. If businesses have “substantially” complied with government-issued health standards or guidance, the business would be immune from liability. A companion bill, House Bill 7 (HB 7) has advanced through the Florida House of Representatives which would raise the bar for personal injury and wrongful death lawsuits stemming from COVID-19 and provide immunity for businesses and entities that made a “good faith” prevention effort.

What’s the impact on Florida’s economy?


Continue Reading A 360 degree look at COVID-19 in Florida — from the Legislature to the Courts

On Tuesday, January 26, 2021 (at 9:00 a.m.), Labor & Employment Attorney Scott Atwood will provide an update for business owners and HR professionals on the state of employments laws.

With the introduction of COVID vaccines resulting in many employers returning their workforces to the office, they will likely face a multitude of questions. In this one-hour webinar, attendees will learn:

  • the most recent EEOC and CDC guidance on COVID return-to-work and discrimination issues;
  • the fate of the Families First Coronavirus Response Act; and,
  • the general status of employment laws under the new Biden Administration.


Continue Reading Webinar: 2021 Back to Work HR Law Update