Florida Senate - 2021                                     SB 2-B
       
       
        
       By Senator Burgess
       
       
       
       
       
       20-00004-21B                                            20212B__
    1                        A bill to be entitled                      
    2         An act relating to COVID-19 mandates; creating s.
    3         381.00317, F.S.; prohibiting private employers from
    4         imposing a COVID-19 vaccination mandate for employees
    5         unless certain individual exemptions are made
    6         available; defining the term “COVID-19”; requiring
    7         employers to use certain forms for submission of
    8         employee exemption statements; specifying conditions
    9         for claiming exemptions; requiring the Department of
   10         Health to adopt certain rules; requiring an employer
   11         to exempt an employee from a vaccination upon
   12         submission of a completed exemption statement form;
   13         authorizing an employee to file a complaint with the
   14         Department of Legal Affairs; requiring the department
   15         to notify a noncompliant private employer and allow
   16         such employer the opportunity to cure a violation;
   17         providing a penalty; providing construction;
   18         authorizing an employee who is terminated to file a
   19         complaint with the department; requiring the
   20         department to investigate such complaints; providing
   21         requirements for such investigations; requiring the
   22         Attorney General to impose an administrative fine for
   23         such violations, with an exception; specifying factors
   24         that the Attorney General may consider in determining
   25         the amount of a fine; specifying that the Attorney
   26         General’s determination regarding a fine constitutes
   27         agency action; providing for the deposit of fine
   28         proceeds in the General Revenue Fund; specifying
   29         eligibility for reemployment assistance for an
   30         unlawfully terminated employee; authorizing the
   31         Department of Health, the Department of Legal Affairs,
   32         and the Department of Economic Opportunity to adopt
   33         emergency rules for specified purposes; specifying
   34         timeframes for the adoption of such rules;
   35         invalidating private employer COVID-19 vaccination
   36         mandates for a specified timeframe; specifying
   37         requirements for the emergency rules; providing that
   38         the emergency rules remain in effect until replaced;
   39         prohibiting an employer from imposing a specified
   40         policy; providing for expiration; creating s.
   41         381.00319, F.S.; defining terms; prohibiting
   42         educational institutions and elected or appointed
   43         local officials from imposing COVID-19 vaccination
   44         mandates on students; providing a right of action to
   45         obtain a declaratory judgment and injunctive relief
   46         for violations; providing for attorney fees and court
   47         costs; providing for expiration; creating s. 112.0441,
   48         F.S.; defining terms; prohibiting educational
   49         institutions and governmental entities from imposing
   50         COVID-19 vaccination mandates for any employees;
   51         declaring null and void any ordinance, rule, or policy
   52         that imposes such mandates; specifying what
   53         constitutes a single violation; authorizing the
   54         Department of Health to impose a fine per violation;
   55         providing for deposit of fine proceeds in the General
   56         Revenue Fund; specifying eligibility for reemployment
   57         assistance for an unlawfully terminated employee;
   58         authorizing the Department of Health and the
   59         Department of Economic Opportunity to adopt emergency
   60         rules for specified purposes; specifying timeframes
   61         for the adoption of such rules; specifying
   62         requirements for the emergency rules; providing that
   63         the emergency rules remain in effect until replaced;
   64         providing for expiration; directing the Chief
   65         Financial Officer to transfer a specified sum to an
   66         account within the Department of Legal Affairs
   67         Operating Trust Fund; providing an appropriation;
   68         providing for the transfer of remaining funds as of a
   69         specified date; amending s. 1002.20, F.S.; prohibiting
   70         district school boards, district school
   71         superintendents, elected or appointed local officials,
   72         and district school board employees from mandating
   73         facial coverings or restricting certain activities for
   74         students based on quarantine policies unless certain
   75         conditions are met; providing that parents may allow
   76         their children to wear facial coverings; providing
   77         applicability; providing a right of action to obtain a
   78         declaratory judgment and injunctive relief for
   79         violations; providing for attorney fees and court
   80         costs; prohibiting district school boards, district
   81         school superintendents, elected or appointed local
   82         officials, and school district employees from
   83         prohibiting employees from returning to work or
   84         subjecting employees to restrictions or disparate
   85         treatment under certain circumstances; providing for
   86         expiration; providing a directive to the Division of
   87         Law Revision; providing an effective date.
   88          
   89  Be It Enacted by the Legislature of the State of Florida:
   90  
   91         Section 1. Section 381.00317, Florida Statutes, is created
   92  to read:
   93         381.00317 Private employer COVID-19 vaccination mandates
   94  prohibited.—
   95         (1) A private employer may not impose a COVID-19
   96  vaccination mandate for any full-time, part-time, or contract
   97  employee without providing individual exemptions that allow an
   98  employee to opt out of such requirement on the basis of medical
   99  reasons, including, but not limited to, pregnancy or anticipated
  100  pregnancy; religious reasons; COVID-19 immunity; periodic
  101  testing; and the use of employer-provided personal protective
  102  equipment. For purposes of this section, the term “COVID-19”
  103  means the novel coronavirus identified as SARS-CoV-2; any
  104  disease caused by SARS-CoV-2, its viral fragments, or a virus
  105  mutating therefrom; and all conditions associated with the
  106  disease which are caused by SARS-CoV-2, its viral fragments, or
  107  a virus mutating therefrom. Employers shall use forms adopted by
  108  the Department of Health, or substantially similar forms, for
  109  employees to submit exemption statements.
  110         (a) To claim an exemption based on medical reasons,
  111  including, but not limited to, pregnancy or anticipated
  112  pregnancy, the employee must present to the employer an
  113  exemption statement, dated and signed by a physician or a
  114  physician assistant who holds a valid, active license under
  115  chapter 458 or chapter 459, or an advanced practice registered
  116  nurse who holds a valid, active license under chapter 464, who
  117  has examined the employee. The statement must provide that, in
  118  the professional opinion of the physician, physician assistant,
  119  or advanced practice registered nurse, COVID-19 vaccination is
  120  not in the best medical interest of the employee. The Department
  121  of Health shall adopt rules specifying circumstances that are
  122  considered an anticipated pregnancy, including, but not limited
  123  to, a maximum timeframe within which one anticipates pregnancy
  124  for the purpose of claiming an exemption under this paragraph.
  125         (b) To claim an exemption based on religious reasons, the
  126  employee must present to the employer an exemption statement
  127  indicating that the employee declines COVID-19 vaccination
  128  because of a sincerely held religious belief.
  129         (c) To claim an exemption based on COVID-19 immunity, the
  130  employee must present to the employer an exemption statement
  131  demonstrating competent medical evidence that the employee has
  132  immunity to COVID-19, documented by the results of a valid
  133  laboratory test performed on the employee. The Department of
  134  Health shall adopt a standard for demonstrating competent
  135  medical evidence of such immunity.
  136         (d) To claim an exemption based on periodic testing, the
  137  employee must present to the employer an exemption statement
  138  indicating that the employee agrees to comply with regular
  139  testing for the presence of COVID-19 at no cost to the employee.
  140         (e) To claim an exemption based on employer-provided
  141  personal protective equipment, the employee must present to the
  142  employer an exemption statement indicating that the employee
  143  agrees to comply with the employer’s reasonable written
  144  requirement to use employer-provided personal protective
  145  equipment when in the presence of other employees or other
  146  persons.
  147         (2) If an employer receives a completed exemption statement
  148  authorized by subsection (1), the employer must allow the
  149  employee to opt out of the employer’s COVID-19 vaccination
  150  mandate.
  151         (3) An employee may file a complaint with the Department of
  152  Legal Affairs alleging that an exemption has not been offered or
  153  has been improperly applied or denied in violation of this
  154  section. If the department investigates and finds that the
  155  exemption was not offered or was improperly applied or denied,
  156  it must notify the employer of its determination and allow the
  157  employer the opportunity to cure the noncompliance.
  158         (4)(a) An employer who fails to comply with this section
  159  and terminates an employee based on a COVID-19 vaccination
  160  mandate commits a violation of this section. Termination
  161  includes the functional equivalent of termination. The
  162  terminated employee may file a complaint with the Department of
  163  Legal Affairs alleging that an exemption has not been offered or
  164  has been improperly applied or denied, resulting in the
  165  employee’s termination. The Department of Legal Affairs shall
  166  conduct an investigation of the complaint filed by a terminated
  167  employee. The investigation, at a minimum, must determine
  168  whether the employer has imposed a COVID-19 vaccination mandate,
  169  whether the employee has submitted a proper exemption statement
  170  and complied with any specified condition, and whether the
  171  employee was terminated as a result of the COVID-19 vaccination
  172  mandate. If the Attorney General finds that an employee has been
  173  improperly terminated, the Attorney General must impose an
  174  administrative fine not to exceed:
  175         1. For an employer with fewer than 100 employees, $10,000
  176  per violation of this subsection.
  177         2. For an employer with 100 or more employees, $50,000 per
  178  violation of this subsection.
  179  
  180  However, the Attorney General may not impose a fine on an
  181  employer that reinstates, prior to the issuance of a final
  182  order, a terminated employee with back pay to the date that the
  183  complaint was received by the department under this subsection.
  184         (b) In determining the amount of fine to be levied for a
  185  violation, the Attorney General may consider any of the
  186  following factors:
  187         1. Whether the employer knowingly and willfully violated
  188  this section.
  189         2. Whether the employer has shown good faith in attempting
  190  to comply with this section.
  191         3. Whether the employer has taken action to correct the
  192  violation.
  193         4. Whether the employer has previously been assessed a fine
  194  for violating this section.
  195         5. Any other mitigating or aggravating factor that fairness
  196  or due process requires.
  197         (c) The decision of the Attorney General under this
  198  subsection constitutes agency action for purposes of chapter
  199  120.
  200         (d) Fines collected pursuant to this subsection must be
  201  deposited in the General Revenue Fund.
  202         (5)(a) If an employer fails to comply with subsections (1)
  203  and (2) and terminates an employee based on the employee’s
  204  noncompliance with a COVID-19 vaccination mandate, the
  205  terminated employee may be eligible for reemployment assistance
  206  under chapter 443 in addition to any other remedy available to
  207  the employee.
  208         (b) If an employee is terminated for refusing to comply
  209  with a COVID-19 vaccination mandate and the employer did not
  210  offer and properly apply the exemptions required under this
  211  section:
  212         1. Such refusal may not be deemed misconduct for the
  213  purpose of reemployment assistance under chapter 443.
  214         2. Notwithstanding any provision of chapter 443, work is
  215  not deemed suitable and benefits may not be denied under s.
  216  443.101 to the terminated employee for refusing to accept new
  217  work if the terminated employee is otherwise eligible and the
  218  position requires compliance with a COVID-19 vaccination mandate
  219  contrary to this section or s. 112.0441.
  220         (6) Notwithstanding s. 120.74(4) and (5), the Department of
  221  Health, the Department of Legal Affairs, and the Department of
  222  Economic Opportunity are authorized, and all conditions are
  223  deemed met, to adopt emergency rules pursuant to s. 120.54(4)
  224  and this section. Such rulemaking must occur initially by filing
  225  emergency rules within 15 days after the effective date of this
  226  act. An employer COVID-19 vaccination mandate is deemed invalid
  227  until the Department of Health files its emergency rules or 15
  228  days after the effective date of this act, whichever occurs
  229  first.
  230         (a) The Department of Health shall adopt emergency rules to
  231  specify requirements for the frequency and methods of testing
  232  which may be used by employers, to establish standards for
  233  competent medical evidence that the employee has immunity to
  234  COVID-19, to specify circumstances that are considered an
  235  anticipated pregnancy, and to create the following:
  236         1. A form for use by a physician, a physician assistant, or
  237  an advanced practice registered nurse to document an exemption
  238  based on medical reasons, including, but not limited to,
  239  pregnancy or anticipated pregnancy.
  240         2. A form for use by an employee to document an exemption
  241  based on religious reasons.
  242         3. A form for use by an employee to document an exemption
  243  based on COVID-19 immunity. Such form must include the
  244  laboratory criteria for proof of immunity for the virus that
  245  causes COVID-19.
  246         4. A form for use by an employee to document an exemption
  247  based on periodic testing. Such form must include the required
  248  frequency of testing and acceptable tests that may be used.
  249         5. A form for use by an employee to document an exemption
  250  based on employer-provided personal protective equipment.
  251         (b) The Department of Economic Opportunity shall adopt
  252  emergency rules to implement subsection (5).
  253         (c) The Department of Legal Affairs shall adopt emergency
  254  rules to implement subsections (3) and (4), including
  255  prescribing the complaint and notification processes and
  256  specifying the functional equivalent of termination.
  257  
  258  Notwithstanding s. 120.54(4)(c), emergency rules adopted
  259  pursuant to this subsection remain in effect until replaced by
  260  rules adopted under regular rulemaking. The Department of
  261  Health, the Department of Legal Affairs, and the Department of
  262  Economic Opportunity shall begin rulemaking under s. 120.54(2)
  263  and (3) immediately after filing the emergency rules.
  264         (7) An employer may not impose a policy that prohibits an
  265  employee from choosing to receive a COVID-19 vaccination.
  266         (8) This section expires June 1, 2023.
  267         Section 2. Section 381.00319, Florida Statutes, is created
  268  to read:
  269         381.00319 Prohibition on COVID-19 vaccination mandates for
  270  students.—
  271         (1) For purposes of this section, the term:
  272         (a) “COVID-19” has the same meaning as in s. 381.00317(1).
  273         (b) “Educational institution” has the same meaning as in s.
  274  112.0441(1).
  275         (c) “Parent” has the same meaning as in s. 1000.21(5).
  276         (2) Notwithstanding any other law to the contrary, an
  277  educational institution or elected or appointed local official
  278  may not impose a COVID-19 vaccination mandate for any student.
  279         (3) A parent of a student, a student who is an emancipated
  280  minor, or a student who is 18 years of age or older may bring an
  281  action against the educational institution to obtain a
  282  declaratory judgment that an act or practice violates this
  283  section and to seek injunctive relief. A prevailing parent or
  284  student, as applicable, must be awarded reasonable attorney fees
  285  and court costs.
  286         (4) This section expires June 1, 2023.
  287         Section 3. Section 112.0441, Florida Statutes, is created
  288  to read:
  289         112.0441 Prohibition on public employee COVID-19
  290  vaccination mandates.—
  291         (1) For purposes of this section, the term:
  292         (a) “COVID-19” has the same meaning as in s. 381.00317(1).
  293         (b) “Educational institution” means an institution under
  294  the control of a district school board; a charter school; a
  295  state university; a developmental research school; a Florida
  296  College System institution; the Florida School for the Deaf and
  297  the Blind; and the Florida Virtual School.
  298         (c) “Governmental entity” has the same meaning as in s.
  299  768.38.
  300         (2)(a) Notwithstanding any other law to the contrary, an
  301  educational institution or a governmental entity may not impose
  302  a COVID-19 vaccination mandate for any full-time, part-time, or
  303  contract employee. Any existing ordinance, rule, or policy
  304  imposing such mandate is null and void as of the effective date
  305  of this act.
  306         (b) An educational institution or a governmental entity
  307  that imposes a COVID-19 vaccination mandate for any full-time,
  308  part-time, or contract employee commits a violation of this
  309  section for each employee subject to the employer’s COVID-19
  310  vaccination mandate. The Department of Health may impose a fine
  311  not to exceed $5,000 per violation. Fines collected pursuant to
  312  this subsection must be deposited in the General Revenue Fund.
  313         (3)(a) If an educational institution or a governmental
  314  entity fails to comply with subsection (2) and terminates an
  315  employee based on the employee’s noncompliance with a COVID-19
  316  vaccination mandate, the terminated employee may be eligible for
  317  reemployment assistance under chapter 443 in addition to any
  318  other remedy available to the employee.
  319         (b) If an employee is terminated by an educational
  320  institution or a governmental entity for refusing to comply with
  321  any COVID-19 vaccination mandate:
  322         1. Such refusal may not be deemed misconduct for the
  323  purpose of reemployment assistance under chapter 443.
  324         2. Notwithstanding any provision of chapter 443, work is
  325  not deemed suitable and benefits may not be denied under s.
  326  443.101 to the terminated employee for refusing to accept new
  327  work if the terminated employee is otherwise eligible and the
  328  position requires compliance with a COVID-19 vaccination mandate
  329  contrary to this section or s. 381.00317.
  330         (4) Notwithstanding s. 120.74(4) and (5), the Department of
  331  Health and the Department of Economic Opportunity are
  332  authorized, and all conditions are deemed met, to adopt
  333  emergency rules pursuant to s. 120.54(4) to implement this
  334  section. Such rulemaking must occur initially by filing
  335  emergency rules within 15 days after the effective date of this
  336  act. Notwithstanding s. 120.54(4)(c), emergency rules adopted
  337  pursuant to this subsection remain in effect until replaced by
  338  rules adopted under regular rulemaking. The Department of Health
  339  and the Department of Economic Opportunity shall begin
  340  rulemaking under s. 120.54(2) and (3) immediately after filing
  341  the emergency rules.
  342         (5) This section expires June 1, 2023.
  343         Section 4. The Chief Financial Officer shall immediately
  344  transfer $5 million from the General Revenue Fund to a
  345  designated account within the Department of Legal Affairs
  346  Operating Trust Fund. For the 2021-2022 fiscal year, the
  347  nonrecurring sum of $5 million is appropriated to the Department
  348  of Legal Affairs from the Operating Trust Fund for complaint and
  349  investigation activities and for taking legal action to stop the
  350  enforcement of COVID-19 vaccination mandates imposed by the
  351  Federal Government. Any moneys remaining in the designated
  352  account on June 1, 2023, must be transferred to the General
  353  Revenue Fund unallocated.
  354         Section 5. Paragraph (n) is added to subsection (3) of
  355  section 1002.20, Florida Statutes, to read:
  356         1002.20 K-12 student and parent rights.—Parents of public
  357  school students must receive accurate and timely information
  358  regarding their child’s academic progress and must be informed
  359  of ways they can help their child to succeed in school. K-12
  360  students and their parents are afforded numerous statutory
  361  rights including, but not limited to, the following:
  362         (3) HEALTH ISSUES.—
  363         (n) Face covering mandates and quarantine mandates in
  364  response to COVID-19.—
  365         1. A district school board, a district school
  366  superintendent, an elected or appointed local official, or any
  367  district school board employee may not:
  368         a. Require a student to wear a face mask, a face shield, or
  369  any other facial covering that fits over the mouth or nose.
  370  However, a parent, at the parent’s sole discretion, may allow
  371  his or her child to wear a face mask, a face shield, or any
  372  other facial covering that fits over the mouth or nose. This
  373  prohibition does not apply to safety equipment required as part
  374  of a course of study consistent with occupational or laboratory
  375  safety requirements.
  376         b. Prohibit a student from attending school or school
  377  sponsored activities, prohibit a student from being on school
  378  property, or subject a student to restrictions or disparate
  379  treatment, based on an exposure to COVID-19, so long as the
  380  student remains asymptomatic and has not received a positive
  381  test for COVID-19 as defined in s. 381.00317(1).
  382  
  383  A parent of a student, a student who is an emancipated minor, or
  384  a student who is 18 years of age or older may bring an action
  385  against the school district to obtain a declaratory judgment
  386  that an act or practice violates this subparagraph and to seek
  387  injunctive relief. A prevailing parent or student, as
  388  applicable, must be awarded reasonable attorney fees and court
  389  costs.
  390         2. A district school board, a district school
  391  superintendent, an elected or appointed local official, or any
  392  school district employee may not prohibit an employee from
  393  returning to work or subject an employee to restrictions or
  394  disparate treatment based on an exposure to COVID-19 so long as
  395  the employee remains asymptomatic and has not received a
  396  positive test for COVID-19 as defined in s. 381.00317(1).
  397         3. This paragraph expires June 1, 2023.
  398         Section 6. The Division of Law Revision is directed to
  399  replace the phrase “the effective date of this act” wherever it
  400  occurs in this act with the date the act becomes a law.
  401         Section 7. This act shall take effect upon becoming a law.