On May 11, 2023, Florida Governor Ron DeSantis signed SB 252 (2023), “[a]n act relating to protection from discrimination based on health care choices.” SB 252 went into effect on June 1, 2023, and codifies COVID-19 related restrictions imposed on Florida employers similar to those enacted in 2021, which expired on June 1, 2023. However, SB 252 is broader than prior legislation in restricting what forms of COVID-19 related policies Florida employers can impose.
SB 252 prohibits any business operating in Florida from requiring any person to (a) provide documentation certifying COVID-19 and certain other vaccinations; (b) provide proof of post-infection recovery from COVID-19; or (c) undergo a COVID-19 test—without exception. “Any person” includes employees, applicants, contractors, visitors, patients, students, customers, and others. In addition, SB 252 prohibits most employers from requiring “a face mask, a face shield, or any other facial covering that covers the mouth and nose.” There are exceptions from the facial covering prohibitions for (a) healthcare practitioners and providers who are covered by and comply with Fla. Stat. § 408.824 on facial coverings for health care providers and (b) business and governmental entities when facial coverings are required safety equipment consistent with occupational and/or laboratory safety requirements in accordance with standards adopted by the Florida Department of Health. The law requires the Florida Department of Health to develop such standards.
Employers which take an adverse employment action against an employee or applicant on the basis of such prohibited policies or on the knowledge or belief of a person’s vaccination status, COVID-19 post-infection recovery status, or failure to take a COVID-19 test could face liability under SB 252, which provides that the Florida Department of Legal Affairs has the authority to conduct investigations and may impose an administrative fine of up to $5,000 for each individual and separate violation. Moreover, although SB 252 does not itself provide for a private right of action for damages against a private employer, it does not preclude the right of an employee to recover damages or other relief under other applicable laws. Employers should consult with employment counsel to ensure that their policies comply with SB 252 and all other applicable laws relating to safety and accommodations at work.
