Can My Florida-Based Company Ask Me About My COVID-19 Vaccination Status?
Generally, yes, companies based in Florida are allowed to ask you about your COVID-19 status. They can also request information about your vaccination status, specifically when it comes to asking to see confirmation that you are actually vaccinated.
If your employer asks about your COVID-19 and/or vaccination status, they must keep that information confidential. They have a duty to protect your confidential medical information, as they are still subject to HIPAA laws and other medical privacy laws. However, they can certainly ask if you’ve been vaccinated or not, and may require you to provide written documentation that you have received the vaccine from a third-party provider (such as the State, or the location where you received your vaccine, like a CVS or a Walgreens).
The State of Florida also allows employers to require employees to show a valid vaccination card as a condition of their employment.
Can A Company Mandate COVID Vaccines For Non-Federal Employees In Florida?
Yes, employers in Florida can mandate the COVID vaccine even if they’re a private employer (that is, even if you are not an employee of the federal government or a federal contractor). Florida is an at-will employment state. This means that employers can choose to terminate your employment at any time for any reason, provided it is not in violation of employment law. In many cases, this includes requiring that employees show proof of COVID-19 vaccination, and firing employees that choose not to comply.
It should be noted, however, that Florida employers are still subject to requests for exemptions/accommodations (under the ADA for medical exemptions, and under Title 7 of the Civil Rights Act for religious exemptions).
It should also be noted that a certain element of this process is up to the discretion of the employer. At this point, each individual Florida employer can decide for themselves whether or not to mandate the vaccine before being compelled to do so by an Executive Order. Even companies that may not be subject to an eventual EO (i.e., companies that do not conduct interstate commerce, and only do business within the State of Florida) can decide whether or not they want to mandate the vaccine for their own employees (though they are still compelled to consider requests for religious and/or medical exemptions).
What About Employees In Florida Whose Businesses Receive Public Funding Or State Contracts And Services?
When it comes to businesses thar receive federal funding or state contracts and services, things get a little bit trickier. Federal funding and state contracts/services is one of the main modes through which the federal government receives its power. If your business accepts federal money, the federal government has the right to a certain level of oversight.
Therefore, if your employer receives public funding, you will generally be required to follow the federal rules for vaccination.
To explain further, this all has to do with the limited system of government in the United States. The federal government has the power to regulate and govern through a limited number of legal modes, one of which is interstate commerce. If the business deals with interstate commerce—that is, with multiple customers all across the country—then they would be covered by the federal vaccine mandate under the Interstate Commerce Clause.
Another mode for the federal government to execute its power is by attaching conditions to federal funding. This is commonly known as the “power of the purse.” It is conceivable that the federal government, through the “power of the purse”, will have the power to influence vaccine mandates for those businesses that receive, or hope to receive, federal funding.
Therefore, if you are an employee of a Florida business that receives federal funding or state contracts and services, then your employer will generally be able can mandate the vaccine (again, subject to requests for religious and medical exemptions).
What Is A Religious Exemption As It Relates To Mandated COVID-19 Vaccines For Employees?
Let’s begin from the beginning when it comes to religious accommodations.
Title 7 of the Civil Rights Act prohibits employers with 15 or more employees from discriminating on the basis of religion. There is a counterpart in Florida State Law called the Florida Civil Rights Act, which also prohibits employers with 15 or more employees from discriminating on the basis of religion. These laws require businesses with 15 or more employees to make reasonable religious accommodations for their employees.
Tile 7 specifically prohibits an employer from denying a requested reasonable religious accommodation if that accommodation would not pose more than a slight degree of cost or hardship on the employer.
In order to qualify for religious accommodations/exemptions, the employee’s stated belief must be deemed to be sincerely held. A “sincerely held religious belief” is defined very broadly by Title 7. It encompasses all traditional, major organized religions (i.e., Christianity, Islam, Hinduism, Judaism), but also religious beliefs or movements that are newer, less traditional, and less widely recognized.
The requirement for a belief to be “sincerely held” has a very low burden of proof. Essentially, it must not be clearly and evidently false—for instance, an employee claiming a vaccine exemption on the basis of a Christian principle when they post on their Facebook that they are a devout atheist. As such, if you claim a religious exemption, your employer is entitled and may be required to ask you to speak to your religious belief, and to explain how it interferes or conflicts with the vaccine mandate.
To be clear, employees do not have to pass a religious test or cite scripture or have a formal letter from a clergy member attesting to their faith and how it is at odds with the vaccine mandate. Employees do not have to use any special magic words to request accommodation. Rather, the question of whether a religious belief is sincerely held is much more subjective and much less up to the employer to demand proof of, beyond the attesting of the employee.
Importantly, religious beliefs or practices do not have to align with any traditional religious group’s beliefs (even the religious group the employee claims to be a part of) in order to be deemed “sincerely held.” For example, the Vatican has said that they don’t object to the COVID vaccine, but that doesn’t mean a devout Catholic cannot then claim religious exemption because of their belief that the vaccine is made or tested with fetal cells.
So, it is not necessarily a matter of the beliefs as held and stated by traditional religious organizations, but rather is a matte of whether or not your personal religious beliefs and practices, which are sincerely held, oppose the vaccine.
Importantly, if a person’s claim to religious exemption (i.e., claim that they have a sincerely held religious belief that bars them from taking the COVID vaccine) is ever challenged, the employer has the burden of proof to prove that they are not being truthful, because it’s an affirmative defense. The employer would have to prove that it is more likely than not that the employee’s beliefs are not sincerely held, rather than the employee having to prove that it is more likely than not that their beliefs are sincerely held.
Once we move past the question of whether a person’s religious beliefs are sincerely held, we move on to the question of what constitutes a “reasonable accommodation”.
The EEOC (Equal Opportunity Employment Commission) gives us some guidance on this. Their guidance is persuasive, but not binding, and I fully expect that the guidelines they offer will be further worked out through the court system and the associated appeals process. However, they do offer some examples of what a reasonable accommodation for a sincerely held religious belief may look like.
In the context of requesting a religious exemption from the COVID-19 vaccine, reasonable accommodations may include several methods of allowing a person not to get the vaccine for religious reasons, but replacing that requirement with another required action that mitigates the potential harm they may cause as an unvaccinated person. These include:
- Requiring the person to wear a mask at work
- Requiring the person to maintain a certain amount of social distance from their colleagues and non-employees they may interact with during their working hours
- Allowing the person to work a modified shift
- Allowing the person to work remotely or via Zoom from a separate location
- Re-assigning the person
- Requiring mandatory periodic COVID testing at the expense of the employee
In my opinion, certain accommodations—like requiring mandatory COVID testing at the expense of the employee—are more effective than others. That accommodation in particular may even be more effective with the least hardship on the employer than requiring vaccines, since an employee can still contract and transmit a break-through infection despite being fully vaccinated. Regular testing, on the other hand—whether it’s every week, or every day—is much more likely to keep employers informed about an employee’s COVID status. Since the EEOC specifically allows employers to require employees to pay for the tests, they pose a particularly small amount of financial risk or hardship to employers.
The effectiveness of “accommodations” like requiring COVID tests at the employee’s expense is clear from recent policy changes. Originally, the Biden Administration had said that they weren’t going to allow any exemptions to the vaccination mandate. However, they have now shifted course, so long as the employee agrees to submit to weekly COVID testing at the employee’s expense.
This has been a common focal point of exactly where, why, and how people have been claiming religious exemptions from vaccine mandates. Generally, in cases where the religious belief is deemed to be sincerely held and the employee is willing to undergo regular COVID testing at their own expense, employers would generally have to accept that exemption and make the ensuing accommodations.
Of course, these are all examples of accommodations, and may not be deemed acceptable in any given situation. For instance, there may be situations in which one or another accommodation would pose undue financial harm to the employer (like reassignment or social distancing). Employers can discern for themselves (and, if legal action is pursued, in court) which accommodations they can reasonably honor. However, is worth noting once again that all of these rules and guidelines are going to be worked out and determined further as a matter of law—likely in the very near future.
At the heart of this matter is another truth: specifically, that when an employee presents a request for a religious accommodation, an employer at the very least has a duty to engage the employee in an interactive process. This is process really exists to determine what kind of accommodations are reasonable and effective and what they can do to accommodate the employee, rather than whether or not they will provide any accommodations in the first place.
It is unlawful to simply refuse to consider any religious exemptions, and to issue a zero-tolerance policy no matter what type of accommodations may be available or reasonably made available. Therefore, this process is really a balancing act between reasonably accommodating sincerely held religious beliefs and maintaining workplace safety.
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