How to file a private employer vaccine mandate complaint in Florida

BY JENNIFER CABRERA

What do Florida laws say about vaccine mandates?

On November 19, 2021, following the legislature’s special session, Governor DeSantis signed HB 1B into law, creating Florida Statute § 381.00317. Section 381.00317 prohibits private employer COVID-19 vaccination mandates unless the employer accepts certain individual exemptions from the vaccine requirement.

The following forms must be accepted by employers:

• Medical Exemption from COVID-19 Vaccination
• Religious Exemption from COVID-19 Vaccination
• Exemption from COVID-19 Vaccination Based on COVID-19 Immunity
• Exemption from COVID-19 Vaccination Based on Periodic Testing
• Exemption from COVID-19 Vaccination Based on Employer-Provided Personal Protective Equipment

Who enforces this prohibition on mandates?

The Department of Legal Affairs (DLA), under Florida Attorney General Ashley Moody, has been given the responsibility of investigating complaints by employees regarding business compliance with the new law, and DLA has developed a complaint process to review employee complaints. If the business has not terminated the employee, a business who violates the law is given an opportunity to cure its non-compliance. A business that either terminates or does the functional equivalent to terminating an employee can be fined, if they do not reinstate an employee, with the fines depending on the size of the employer. “Functional equivalent of termination” can mean the employee resigned under duress or that the employer made working conditions so difficult or intolerable that “a reasonable person in the employee’s position would feel compelled to resign.”

How do I report an employer?

Rule 2ER21-1 lays out the procedures for reporting employers who are requiring employees to get vaccinated and not accepting the exemptions, regardless of the reason stated by the employer. The law applies to both employees and contractors; it does not apply to certain independent contractors that maintain businesses and have contracts with multiple employers. The law does not apply to government employers.

Complaints must be submitted online using form VAX 1, which asks for information about the employee, the employer, and any exemptions submitted by the employee. There is a space to describe actions taken against the employee that are the functional equivalent of termination, and there is a space to enter the Identification Number of a previous complaint if the employee is submitting updated information.

Complaints submitted online will be processed more quickly. Complaints may also be submitted by email to: vaxmandate@myfloridalegal.com or by U.S. Mail to: Department of Legal Affairs, Private Employer Vaccine Mandate Program, PL-01, the Capitol, Tallahassee, FL 32399-1050.

What happens next?

If DLA finds that the complaint is incomplete, they will notify the employee, who will have 30 days to submit the missing information. When DLA begins its investigation, they send a copy of the complaint to the employer, who has 20 days to respond. DLA then investigates the complaint to determine probable cause; if probable cause is found, DLA will file a formal administrative complaint against the employer and prosecute the complaint, including holding an evidentiary hearing before an administrative law judge if there are any disputed issues of material fact.

The DLA will periodically notify the employee about the status of the investigation, indicating whether probable cause has been found and the status of the administrative proceeding or appeal. If probable cause is not found, the employee will have 30 days to provide additional information that may be relevant to the decision.

The fine for employers with less than 100 employees is $10,000 per violation; for employers with 100 or more employees, the fine is $50,000 per violation.