ORLANDO, Fla. – Gov. Ron DeSantis and Florida Republican leaders took a victory lap in Brandon Thursday, where DeSantis signed four new laws as part of his ongoing campaign against federal and local COVID-19 mandates.
The new laws were passed by the Florida legislature in a special session this week in Tallahassee.
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HB 1B takes aim directly at the mandates, including federal vaccine mandates, business mandates and local mandates against vaccinations, masks or quarantines in schools, and levies some hefty fines against violators.
HB 3B protects workers who file a complaint against a private employer violating the COVID laws by creating a public record exemption, so you can’t learn their identities from state documents.
HB 5B looks into the possibility of creating a state Occupational Safety and Health Administration agency, something more two dozen states plus two U.S. territories already have.
HB 7B takes the ability to order vaccinations away from the state health officer.
Here are five things to know about the new laws:
HB 1B adds more exemptions against vaccinations
HB 1B is in response to President Joe Biden’s vaccine mandates for health workers employed by companies that participate in the Medicare and Medicaid program, and federal contractors and employers with more than 100 employees.
Those mandates already allow exemptions for religious or medical reasons. HB 1B adds the following exemptions for private employees:
- Pregnancy
- Anticipated pregnancy reasons
- COVID-19 immunity (previous infection)
- Periodic testing or use of personal protective equipment, which must be provided by the employer
Employers who don’t allow these exemptions and fire employees face fines of up to $50,000 per violation.
Employees “improperly terminated” are eligible for unemployment benefits.
The law also prohibits local governments from requiring COVID-19 vaccinations from employees, from teachers to first responders, in order to remain employed. Those governments can face fines of up to $5,000 per violation.
HB 1B codifies DeSantis’ school COVID orders
Earlier this year, DeSantis banned mask mandates in local school districts, citing the new Parents’ Bill of Rights law and saying parents had the right to decide whether their children should be masked at school.
HB 1B codifies this order as well as a rule by the new Florida Surgeon General Joseph Ladapo, to ban mandatory quarantines for students and staff exposed to COVID-19 if they are not showing symptoms.
The law also prohibits schools or local officials from mandating COVID-19 vaccinations for students.
DeSantis’ mandates are already facing challenges in federal court.
Constitutional questions surrounding HB 1B
Whether HB 1B is constitutional is a big question right now. Lawmakers cite the 10th amendment to the U.S. Constitution, which says:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
However, in the Florida legislative staff analysis for HB 1B, staff cite a potential impediment in the U.S. Constitution’s Supremacy Clause, Article VI, Paragraph 2, which says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The staff analysis says in the past, the courts have extended the supremacy clause to rules made by federal government agencies.
Florida is already suing the federal government over the private employer mandate, and Florida Attorney General Ashley Moody announced Thursday they would sue to stop the vaccine mandate for health workers.
So far, the courts have supported corporate vaccine mandates. However, a federal mandate is a different issue altogether. The OSHA mandate is currently under an injunction in a U.S. court. As the majority of the U.S. Supreme Court justices are strict interpreters of the Constitution, it will be interesting to see what they decide to do with the federal vaccine mandates.
Why Florida wants to establish its own OSHA
HB 5B directs the governor’s office to develop a plan to create a state office for employee safety, similar to the U.S. OSHA, in time for the January 2022 legislative session.
A staff analysis says Florida wants to look at setting its own OSHA so that it can issue enhanced policies and also have flexibility over the needs of the state’s workforce.
The act that created OSHA in 1970 allowed for states to run their own plans with OSHA approval. The state-run agency must have “standards at least as effective as the federal OSHA standards,” according to the HB 5B legislative staff analysis.
Right now, 21 states and Puerto Rico have their own state plans, which cover private and public employees, while another five states and the U.S. Virgin Islands have plans for government employees only.
The OSHA approval process requires a plan be submitted that includes state legislation, regulations and procedures, plans for enforcing the rules, appeals process and sufficient staffing. Even if the plan is certified, it doesn’t mean the state will automatically get final approval from OSHA. However, if Florida’s plan is rejected, the state can appeal to a federal administrative law judge.
HB 7B removes an ability Florida’s surgeon general never used
Florida’s surgeon general has the ability to declare a public health emergency and require medications and other measures. However, HB 7B means they can no longer mandate vaccines.
The state’s top health officer was granted broad emergency powers by the Florida legislature after 9/11 and the subsequent anthrax attacks.
This allowed the surgeon general to declare a public health emergency because of the statewide opioid epidemic in 2017, which allowed first responders to gain access to the overdose drug Nalaxone without a prescription.
It also gave the surgeon general the authority to examine, vaccinate, treat, quarantine a patient during a public health emergency, even if the patient is unable or unwilling.
HB 7B only affects the state health officer’s ability to order a vaccination but, as the staff analysis says, this particular power has never been used since it was enacted in 2002.
Other required vaccinations in Florida, such as school vaccinations, are mandated by state law.