I. SUMMARY OF NEW STATUTE PENALIZING ATTEMPTS TO REQUIRE PROOF OF VACCINATION
On May 3, 2021, Governor Ron DeSantis signed Senate Bill 2006 (codified as Sec. 381.00316, Florida Statutes) into law. The statute prohibits business entities (including not-for-profit corporations), governmental entities, and educational institutions (public and private) from requiring certain individuals from producing documentation certifying COVID-19 vaccination or post-infection recovery. SB 2006 became effective on July 1, 2021. Subsection (1) of the statute provides in relevant part:
(1) A business entity, as defined in s. 768.38 to include any business operating in this state, may not require patrons or customers to provide any documentation certifying COVID-19 1125 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in this state. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health.
SB 2006 defines the term “business entity” as any form of corporation, partnership, association, cooperative, joint venture, business trust, or sole proprietorship that conducts business in Florida including charitable organizations and corporations not for profit such as condominium associations.
Analysis
- The law prohibits a business entity from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-infection recovery in order to gain access to, entry upon, or service from the business.
- Like Executive Order 21-81 (which also prohibited businesses from requiring proof of vaccination), Section 381.00316 does not prohibit a business from requiring its own employees from showing proof of vaccination. Employers must, however, carefully analyze how such a requirement may be affected by the Americans with Disabilities Act, Title VII’s religious protections, and other laws.
- Nor does the law prohibit (i) an entity asking an individual to voluntarily disclose if they have been vaccinated and (ii) if such person indicates no vaccination, from denying that individual access to the property.
- The law expressly states that it does not prohibit screening protocols consistent with authoritative or controlling government-issued guidance. Such screening protocols could include temperature checks and wearing of face masks in indoor areas in locations where the virus is surging which would be consistent with the CDC’s recent modification of its guidelines to recommend that vaccinated individuals wear face masks in indoor areas where the virus is surging.
Penalties
- An entity covered by SB 2006 is subject to a fine of up to $5,000 per violation.
- Since the statute is a penal statute, its provisions must be strictly construed in favor of the person against whom the penalty could be imposed. Roche Sur. & Cas. Co., Inc. v. Dep’t of Fin. Servs., Office of Ins. Regulation, 895 So. 2d 1139, 1141 (Fla. 2d DCA 2005).
- SB 2006 authorizes the Florida Department of Health to adopt rules in order to implement this law.
II. RIGHT OF A CONDOMINIUM ASSOCIATION TO REQUIRE ITS EMPLOYEES TO BE VACCINATED
On May 28, 2021, the U.S. Equal Employment Opportunity Commission (EEOC) posted updated and expanded technical assistance guidelines related to the COVID-19 pandemic. The guidance answers several common employer questions related to mandating vaccination, obtaining proof of vaccination, and dealing with employees who may object to vaccination.
The key updates to the technical assistance are summarized below:
Federal equal employment opportunity laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as employers comply with the reasonable accommodation provisions of the Americans with Disabilities Act of 1990 (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), and other EEO considerations. Employers can require an employee to provide proof of vaccination such as a copy of the completed CDC-issued vaccine card or a vaccination status printout from the health care provider that provided a vaccine.
The employer’s right is subject to two major exceptions.
Employees’ religious beliefs are the first exception. Employers with 15 or more employees are prohibited from discriminating against their employees on the basis of several characteristics, including their religion, under Title VII.
In order to qualify for a religious exemption under Title VII, an employee must demonstrate that they hold a sincerely held religious belief. In addition, the employer must demonstrate that not vaccinating the objecting employee would not constitute an undue hardship.
Protected medical conditions are the second exception. An employee might have a disability that is recognized by the ADA, and that disability could put their health in danger if that employee receive a coronavirus vaccine. In that case, they may be eligible for a vaccine exemption. COVID-19 vaccine exemptions, however, must not impose an undue hardship on employers.
Recently, the legality of an employer’s COVID-19 vaccine policy was tested by a lawsuit which involved Houston Methodist Hospital’s policy of mandating vaccination by every employee. Some employees objected to receiving the vaccine. The suit sought to halt the hospital’s implementation of the vaccine requirement and their inevitable terminations. In a five-page opinion, Judge Lynn N. Hughes from the U.S. District Court of the Southern District of Texas ruled in the hospital’s favor and dismissed the lawsuit stating:
Although her claims fail as a matter of law, it is also necessary to clarify that Bridges has not been coerced. Bridges says that she is being forced to be injected with a vaccine or be fired. This is not coercion. Methodist is trying to do their business of saving lives without giving them the COVID-19 virus. It is a choice made to keep staff, patients, and their families safer. Bridges can freely choose to accept or refuse a COVID-19 vaccine; however, if she refuses, she will simply need to work somewhere else.
If a worker refuses an assignment, changed office, earlier start time, or other directive, he may be properly fired. Every employment includes limits on the worker’s behavior in exchange for his remuneration. That is all part of the bargain. (Emphasis added).
See, Bridges v. Houston Methodist Hosp., 2021 WL 2399994, at *2 (S.D. Tex. June 12, 2021).
Federal EEO laws do not prevent or limit employers from offering incentives of de minimus value to employees (i.e., such as gift cards, t-shirt, water bottle, or a movie ticket) to voluntarily provide documentation or other confirmation of vaccination obtained from a third party (not the employer) in the community, such as a pharmacy, personal health care provider, or public clinic. But if the incentive is too generous (for example in excess of $100), it will be considered coercive in nature and prohibited. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA.
The reason employers may ask for proof of vaccination is because they have to consider the health and safety of their employees and the public.
When vaccination requirements screen out or tend to screen out individuals with disabilities, the employer must prove that the unvaccinated employee poses a direct threat to their safety or the safety of others that cannot be eliminated or reduced by reasonable accommodations without undue hardship on the employer.
Currently, the State of Florida has no law in effect that would preclude employers from requiring employees to provide proof of vaccination or from being required to wear masks. However, there is always the possibility that Florida could enact such a law.
A condominium association should be careful of asking employees why they did not receive a vaccine, because those questions may elicit information about a medical condition – making the association subject to the ADA’s various requirements for disability-related inquiries.
III. APPLICATION OF THE LAW TO A CONDOMINIUM
Based on the foregoing, below are suggested pathways regarding COVID-19-related rules and practices:
- As to Contractors and Outside Providers: as a result of the newly passed state statute, the Board cannot adopt a rule, and, therefore, staff cannot demand proof of vaccination from workers or companies supplying workers. There is nothing in the law that prevents inquiring as to whether a third-party worker or outside consultant supplying services to the condominium association has been vaccinated or even recommending vaccination, but the association cannot demand proof of any statement of having been vaccinated. The new statute does not prohibit an association from refraining from hiring a contractor or consultant who declines to provide proof of vaccination;
- As to Condominium Employees: A condominium association as an employer can require COVID-19 vaccination as a condition of continuing employment or hiring. But such a policy must comply with the Americans With Disabilities Act and Civil Rights Act limitations which forgive refusal to vaccinate for religious or disability reasons. As a condition of employment, an employee can be required to wear a mask continuously while at the condominium; and
- As to Condominium Owners and Guests: because the CDC modified its guidelines[1] and is recommending that both vaccinated and unvaccinated individuals wear masks in locations where the virus is surging, it is reasonable for an association to require guests and residents to wear masks in indoor common areas of the condominium property. However, a condominium association is barred by the new Florida statute from requiring proof of vaccination. If a resident or guest voluntarily admits to not having been vaccinated, it appears that within the CDC guidelines, it is permissible to continue to require that such a person wear a mask on condominium property.
Through Executive Orders, Governor DeSantis has also recently suspended all remaining local government mandates and restrictions based on the COVID-19 State of Emergency (Executive Order 21-102) and has prohibited COVID-19 vaccine passports (Executive Order 21-81).
IV. SUMMARY OF FLORIDA SHIELD LAW APPLICABLE TO CONDOMINIUMS
As to the potential for negligence lawsuits against a condominium Board or association from persons contracting COVID-19 at the condominium, it is important to note that the State of Florida has adopted a statute that provides immunity from most suits.
Specifically, § 768.38(3)(c)(2)(b), (c), Fla. Stat., provides:
Businesses and other covered entities are immune from COVID-19-related claims liability if a court determines that the business made a good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance at the time the cause of action accrued.
If a court determines that the business did not make a good-faith effort to comply with controlling standards, the business still may be shielded from liability unless the injured party demonstrates the business’s actions were at least gross negligence.
V. TIMELINE OF COVID-19 EVENTS
July 27, 2021: The CDC revised its mask guidelines and is now recommending that vaccinated people wear masks indoors again in parts of the U.S. where COVID-19 is surging which at the present time includes Florida.
July 17, 2021: A federal district court order blocking the CDC’s restrictions on the cruise industry was stayed by the 11th Circuit. The State of Florida had accused the CDC of overstepping its authority when it issued a plan to reopen the cruise industry. Judge Steven Merryday granted a preliminary injunction against the restrictions on June 18, 2021.
July 9, 2021: The CDC issued updated guidance for K-12 schools, highlighting the importance of getting as many eligible children vaccinated as possible to return classrooms to normal or near normal and issued its list of best practices to prevent transmission of COVID-19.
June 26, 2021: Governor DeSantis allows the statewide COVID-19 emergency declaration to expire. DeSantis first declared a state of emergency on March 10, 2020.
May 24, 2021: Governor DeSantis announces the state would stop participating in federal pandemic unemployment programs on June 26, 2021.
May 3, 2021: Governor DeSantis signs Senate Bill 2006 which, among other things:
- prohibits businesses, government entities, and educational institutions from requiring proof of COVID-19 vaccination to gain access to, enter, or receive services; and
- allows the Governor to invalidate any emergency order issued by a political subdivision if the Governor determines that it unnecessarily restricts individual rights or liberties.
May 3, 2021: Governor DeSantis signs Executive Order 21-102, which:
- suspends all local COVID-19 restrictions and mandates on individuals and businesses; and prohibits counties and municipalities [but not condominium associations] renewing or enacting any emergency order or ordinance that imposes restrictions on individuals or businesses.
April 2, 2021: Governor DeSantis signs Executive Order 21-81, which prohibits businesses from requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to enter the businesses.
March 29, 2021: Governor DeSantis signs SB 72, which provides civil immunity to individuals and businesses from COVID-19-related claims, provided they make a good-faith effort to comply with public health guidelines to prevent the spread of the virus.
[1] As of July 27, 2021, the CDC is now recommending that vaccinated people wear masks indoors again in parts of the U.S. where COVID-19 is surging which at the present time includes Florida.
