By Karla Grossenbacher

Seyfarth Synopsis:  On May 11, 2023, the same day on which the federal government ended the national health emergency related to COVID-19, Florida Governor Ron DeSantis signed into law a sweeping bill (SB 252) that prohibits businesses in Florida from discriminating in any way against a person based on vaccination status and from requiring face masks and COVID-19 tests.

This law amends the existing law in Florida that prohibits business from requiring documentation of vaccination status from customers and patrons.  The amendments transform current law by broadening the restrictions on business and expanding them to apply to any “person” and not just “customers” and “patrons.”

The law’s anti-discrimination provisions effectively prevent any business, including employers, from having any kind of vaccine mandate.   Although many employers are moving on from vaccine mandates and rules around masking and testing in light of the Biden Administration’s declaration of the end of the national health emergency related to COVID-19, many hospitals and healthcare providers have not, and indeed, some cannot do so until the rule promulgated by Centers for Medicare and Medicaid for certain health care providers is discontinued. 

Billed as a “medical freedom” law, SB 252 provides that a business entity (defined broadly as any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in Florida) may not:

  1. Require any person to provide any documentation certifying COVID vaccination or post-infection recovery from COVID 19;
  2. Require a COVID test to gain access to, entry upon, or service from the business operations in this state or as a condition of contracting, hiring, promotion, or continued employment with the business entity; 
  3. Discharge or refuse to hire a person; deprive or attempt to deprive a person of employment opportunities; adversely affect a person’s status as an employee or as an applicant for employment; or otherwise discriminate against a person based on knowledge or belief of the person’s status relating to vaccination with any vaccine defined under subsection (2) or COVID-19 post-infection recovery, or a person’s failure to take a COVID-19 test;
  4. Require a person to wear a face mask, a face shield, or any other facial covering that covers the mouth and nose; or
  5. Deny a person access to, entry upon, service from, or admission to such entity or otherwise discriminate against a person based on such person’s refusal to wear a face mask, a face shield, or any other facial covering that covers the mouth and nose.

The restrictions regarding facial coverings do not apply to health care providers or health care practitioners, as defined under the law, as long as they are in compliance with the soon-to-be-developed facial covering standards for health care that the law directs the Florida Department of Health (DOH) and the Agency for Health Care Administration to develop by July 1, 2023.  Health care providers and practitioners have until August 1, 2023 to develop facial covering policies and procedures that conform to these standards to the extent they wish to require persons to wear facial coverings for any reason. The facial covering restrictions in the law also do not apply to a business entity when a face mask, a face shield, or any other facial covering that covers the mouth and nose is required safety equipment consistent with occupational or laboratory safety requirements, in accordance with standards to be adopted by the Florida DOH. 

If a business requires a person to receive a vaccine other than a COVID vaccine (as defined by the law), the business entity must provide for exemptions and reasonable accommodations for religious and medical reasons in accordance with federal law.

Businesses that violate the law are subject to fines of up to $5000 for each individual and separate violation of the law.  However, the law does not limit the right of a person to recover damages or other relief for violations of this law under any other applicable law.  The law is silent on its interaction with federal law in the event there are conflicting federal requirements.

Unlike Florida’s vaccine exemption law that is set to expire on June 1, SB 252 is not a temporary measure.  This law will be in place when and if another pandemic occurs and will tie the hands businesses in Florida with respect to putting safety measures in effect.