🗞 *FLORIDA EXEMPTION PRIMER* 🗞

🔥 It took the massive federal agency OSHA two months to draft a 600-page behemoth emergency rule mandating injections, but it only took Florida’s Department of Health two days to draft its new emergency rule and a succinct set of new exemption forms. It’s probably more accurate to call them “opt-out” forms.

On Friday, the DOH published its new emergency rule, 64DER21-17. Here’s the link to it, you can quickly read the whole thing: https://tinyurl.com/upbhmhb. Unlike the adipocerous OSHA rule, Florida’s fits on one page. It describes six types of opt-outs, references their related forms, and even allows that employees can use “substantially similar” forms of their own devise if they want. The forms are all one page long, and don’t ask for ANY confidential information.

Here are the six opt-outs to Covid-19 employer injection policies that are described in emergency rule 64DER21-17:

(1) Medical opt-out, using the form. It requires a signature from a medical professional.

(2) Pregnancy opt-out, if you are pregnant or want to become pregnant and are of child-bearing years. That’s it. Fill out the one-page form. It requires a signature from a medical professional.

(3) Religious opt-out. This includes moral and ethical concerns. Just fill out the form. Both the rule and the form clearly say that “An employer shall not inquire into the veracity of the employee’s religious beliefs.” Privacy!

(4) Prior Infection exemption. Fill out the form and attach EITHER: (i) a positive antibody test; OR (ii) a positive PCR test from when you had Covid. Haha! Cue up the “experts” gibbering about how unreliable the PCR tests are.

(5) Periodic testing option. The employee can fill out a form to choose, if she wants, to be tested — no more often than weekly (or when symptomatic) — at the employer’s cost.

(6) PPE option. The employee may fill out a form to choose, if he wants, to wear employer-provided PPE. That’s it. No tests. No exemptions. Just PPE.

There are no time limits. As I read the rule, the exemptions can be raised at any time. They don’t preclude each other. So, for example, if the employer makes its PPE rule too onerous, an employee who chose the PPE option can then select one of the other options.

Because there’s a PPE option, by exclusion an employee who chooses one of the other opt-outs should not be required to wear PPE as a result of opting out of the injection policy.

🔥 Conservative activists were fretful that the forms would be super-invasive and would be used to collect citizens’ private religious and medical information into a state database. Let’s take a look at a couple of the forms and you’ll see how those worries were misplaced.

MEDICAL OPT-OUT FORM

We’ll look at the medical exemption form first.

The medical exemption form has to be signed by a doctor. It has a box to check if the reason is pregnancy or anticipated pregnancy. Other than that, it only asks for name, date, employer’s name, birth date, and phone number.

In the next box, it asks for a medical provider to confirm the request by signing. Here’s the entire statement that the medical provider is asked to confirm. Are you ready? It is:

“It is my professional opinion as a physician or physician assistant who holds a valid, active license under chapter 458 or chapter 459, Florida Statutes, or an advanced practice registered nurse who holds a valid, active license under chapter 464, Florida Statutes, that COVID-19 vaccination is not in the best medical interest of the employee.”

That’s the whole thing! No requirement to “disclose” private medical information. Just sign and go. At the bottom of the form, in bold, oversized type, the form says:

“NOTE: Pursuant to section 381.00317(2), Florida Statutes, this completed exemption statement requires the employer to allow the employee to opt-out of the employer’s COVID-19 vaccination mandate.”

RELIGIOUS OPT-OUT FORM

The religious opt-out is even simpler. It just asks for name, birth date, employer, etc, then says:

“Pursuant to section 381.00317, Florida Statutes: I hereby declare that I decline the COVID-19 vaccination because of a sincerely held religious belief, which may include a sincerely held moral or ethical belief.”

That’s it. You don’t even have to say what your religion is. You don’t even have to say whether it’s a religious objection versus a moral or ethical objection. Contrast this to all the maniacal multi-page forms from employers asking about every thought you’ve ever had about God since you were a fetus.

And look at what it says at the bottom, in large, boldfaced font:

“NOTE: An employer shall not inquire into the veracity of the employee’s religious beliefs. Pursuant to section 381.00317(2), Florida Statutes, this completed exemption statement requires the employer to allow the employee to opt-out of the employer’s COVID-19 vaccination mandate.”

By the way, that is COMPLETELY consistent with Title VII law.

The other three forms are even simpler and easier.

This is a spectacular win for individual liberty, bodily autonomy, and privacy, and is also completely consistent with the Florida Constitution’s full-on protection of personal privacy interests. It should never have been more complicated than this.

A final word to the activist leaders. If you were in the group opposing the Special Session due to worries about data collection, don’t be a leftist! Tell your followers you were overly concerned about that, and the legislature did a great job under a lot of time pressure and under harrowing political circumstances. Give credit where it’s due. Don’t be a Pelosi.

🚀 *WHAT NEXT?* 🚀

Now that forced masking and jabbing are under better control, my law office will be focusing on cases of discrimination and cases where healthcare providers are being pressured by various agencies because they’ve been successfully treating Covid patients.

If you are encountering workplace discrimination (in Florida, for now), and would like our help, email the details and your contact information to discrimination@smartbizlaw.com

If you are a healthcare provider and have received one of the requests from Blue Cross to audit your ivermectin files, or an inquiry from any licensing board, email the details and your contact information to hcws@smartbizlaw.com.

Even if you already emailed us about getting a notice from Blue Cross or some other agency, forward that email to the new email address.

🚨 *VACCINE MANDATE COMPLAINT PRIMER* 🚨

Terrific news this morning! Florida’s Attorney General released the new rules over the weekend for reporting violations of the state’s mandate exemption laws. Not only does it give the new law’s teeth, but it also provides some legit tools for uninjected employees facing discriminatory working conditions. Let’s break it down.

The new emergency rule, number 2ER21-1 (https://tinyurl.com/4mfah8hc), was put out by Florida’s Department of Legal Affairs (DLA).

UPDATE Additional link: https://www.flrules.org/Gateway/View_notice.asp?id=25325747

The rule protects both wage employees (W2s) and independent contractors (1099s). An employee can file a complaint against an employer after getting fired for not taking a vaccine if the employer refused to recognize one of the state’s new forms and grant an exemption. The state considers an employee “fired” even if they quit — as long as the employer made their working conditions difficult or intolerable.

Employees can file an initial complaint online. Here’s the link: http://myfloridalegal.com/vaxmandate/webform. It’s pretty self-explanatory. (My office is coming up with a low-cost way to get legal advice about how to fill out the form. Depending on volume, we may handle it with group zoom formats like we did with exemption-drafting advice.)

The DLA will then serve a copy of the complaint to the employer, who has 20 days to submit a written response if they want. After that, the DLA will evaluate the complaint and the response. If the DLA finds that it’s likely the employer violated the exemption law, it will then file a lawsuit against the employer in the state’s Division of Administrative Hearings (DOAH), which is used for other types of employment disputes, like unpaid wage cases.

Finally, the rule says the DLA will keep employees updated about the status of their complaints as the case progresses.

DIFFICULT OR INTOLERABLE CONDITIONS

One of the best things about the rule is that it says that overbearing policies against uninjected workers are the same thing as termination. It defines the “functional equivalent of termination” as when “the employer, through its actions, made working conditions so difficult or intolerable that a reasonable person in the employee’s position would feel compelled to resign.”

In my view, this applies to any employee dealing with horrible, demeaning, discriminatory policies like outdoor bathrooms, segregation, N95 mask requirements, and so forth. In these cases, the employee should notify their employer that, if the odious policies aren’t changed, the employee plans to quit and file a complaint with the DLA.

That’s a threat with some teeth to it, and employers will have to seriously think about how much they really want to punish employees for not getting jabbed versus risking heavy fines from the DLA.

Finally, we’ll have to see what the DLA thinks, but in my legal opinion, being placed on indefinite unpaid leave is the “functional equivalent of termination.”