GrayRobinson Labor & Employment E-lert: COVID STRIKES BACK: Understanding What Measures Florida Businesses May or May Not Take to Safeguard Customers and Employees

Authored by: Matthew A. Bowles | August 6, 2021

On Saturday, July 30, 2021, Florida reported its highest number of daily COVID-19 infections at 38,776 new cases. With some Florida hospitals currently admitting more COVID-19 patients than during the height of the pandemic in January 2021, Florida businesses are scrambling to keep their workforces and customers healthy. In New York City and San Francisco, restaurants and bars are requiring patrons to provide proof of vaccination for service. While Florida businesses may be tempted to institute similar requirements, recent Florida legislation prohibits them from doing so.

Effective July 1, 2021, SB 2006 prohibits business entities, governmental entities and educational institutions (public and private) from requiring certain individuals from providing documentation certifying COVID-19 vaccination or post-infection recovery (this E-Lert only addresses business entities as defined in SB 2006 and some business entities may also meet SB 2006’s definitions for governmental entities and/or educational institutions which may impose additional restrictions on such business entities under SB 2006). In enacting SB 2006, Governor DeSantis and the Florida Legislature sought to prevent a two-class system based on individuals’ vaccination status. For better or for worse, SB 2006 has succeeded in preventing a two-class system in Florida. With fines starting at $5,000 per each violation, businesses should not take SB 2006 lightly. Specifically, SB 2006 provides the following with respect to business entities:

  • Business Entities
    • 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.
      • The term also includes charitable organizations and corporations not for profit.
    • 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.
      • The law does not restrict screening protocols consistent with authoritative or controlling government issued guidance.
    • Notably, the law does not appear to impact a business entity’s ability to mandate vaccines for its employees.
  • Exemptions
    • SB 2006 does not apply to the following:
      • “Health Care Provider” as defined under Sec. 768.38(2)(e), Florida Statutes;
      • A service provider licensed or certified under s. 393.17, part III of chapter 401, or part IV of Ch. 468, Florida Statutes; or
      • A provider with an active health care clinic exemption under Sec. 400.9935, Florida Statutes.
  • Penalties
    • An entity covered by SB 2006 is subject to a fine of up to $5,000 per violation.

So, without the ability to require proof of vaccination from customers, in what ways can businesses protect their employees’ and customers’ health?

Employee Policies

There remain many methods which businesses may implement in order to maintain a safe environment. First, businesses may take certain actions with their workforce which they are unable to take with their customers/patrons. Primarily, businesses may require their employees to obtain the COVID-19 vaccination. However, businesses which implement mandatory vaccinations among employees must ensure that they understand the pitfalls of doing so. For instance, businesses implementing such policies must engage in the interactive process with employees who refuse to get the vaccine due to a disability, pregnancy, or a sincerely held religious belief. There may be wage and hour concerns as well. Businesses may need to compensate employees for time spent obtaining the vaccine. This will depend on the amount of control a business exerts over the vaccination process. As the COVID-19 vaccine remains free for both insured and uninsured individuals, businesses need not worry about paying for the vaccine at this time.

Businesses may also implement varying mask policies for their employees. While businesses are free to institute a mandatory mask policy for all employees, there are other acceptable policy variations. These include, but are not limited to, requiring the following employees to wear masks:

  • Unvaccinated employees
  • Employees in certain positions who are exposed to the public
  • Employees unable to social distance

Businesses which institute policies based on an employee’s vaccination status must also ensure that they protect the confidentiality of any retained documented proof of vaccination. Further, businesses must maintain such documentation separately from employee personnel files as the businesses would any other medical information protected by the ADA.

Businesses may require employees to undergo periodic COVID-19 testing in order to continue entering the workplace, but employers should understand the legal implications of such testing. Primarily, the EEOC’s current guidance prohibits an employer from requiring antibody testing. Instead, employers may require viral tests such as a rapid viral test or PCR viral test. Such testing can be very expensive and employers may be required to pay for such testing. Additionally, U.S. Department of Labor guidance provides that employers may need to compensate employees for time spent undergoing a mandatory COVID-19 test when the test is integral and indispensable to their work during the pandemic.

Regardless of which COVID-19 safety measures businesses choose to implement for their employees, businesses may enforce their COVID-19 related policies via their normal disciplinary procedures. Of course, businesses may need to accommodate employees who request an accommodation due to a disability, pregnancy, or sincerely held religious belief.

Customer Policies

Although SB 2006 prohibits Florida businesses from requiring customer/patron proof of vaccination, it does not prohibit businesses from implementing a policy based on the honor system. For instance, a business may request that unvaccinated customers/patrons wear masks without actually requiring proof of vaccination status. While this tactic may work for some businesses, other businesses may want to implement mandatory mask policies for all customers/patrons. In the end, this is a business decision which businesses will need to consider based on their own unique circumstances. Businesses which find mask policies difficult to enforce among their customers/patrons may implement creative and subtle changes such as slightly spacing out customer areas and/or creatively implementing other CDC guidance for social distancing. Restaurants and bars may also seek to reward customers/patrons by giving out coupons for free appetizers or drinks to those who put on their mask when they are not seated or are “caught” safely social distancing. However, businesses should avoid any incentives based on a customer’s/patron’s vaccination status as such incentives may violate SB 2006.

The Florida Department of Health is currently in the process of developing a final administrative rule for SB 2006 and we will provide future updates regarding this as necessary.