Florida issues emergency rule, FAQ clarifying COVID vaccine mandate law

On November 18, 2021, Florida Governor DeSantis enacted Bill 1B, imposing a series of requirements on Sunshine State employers seeking to impose COVID-19 vaccination mandates on their workforce. The law itself has left employers with many questions regarding the scope of the law, definitions of key terms and methods of enforcement.

Some of these questions were answered on December 2, 2021, when the Florida Department of Legal Affairs released Emergency rule 2ER21-1 (the “emergency rule”) defining various terms used in the florida law and establish the complaints procedure for challenges to private employer vaccine mandates under sections 381.00317 (3) and (4), Florida Statutes. The Department of Legal Affairs also provided a list of responses to 11 Frequently Asked Questions (FAQ). These FAQs and Emergency Rule come at a time when the courts are still deciding on the legal challenges against the various COVID-19 warrants issued by the federal government, further contributing to the (seemingly) ever-changing landscape of COVID-19 vaccine warrants.

Definitions of emergency rules

More specifically in the emergency rule, the Ministry of Legal Affairs defined the following five terms: “department”, “employee”, “independent contractor”, “private employer” and “functional equivalent of termination”.

An “employee” under this emergency rule is defined as “any person who receives remuneration from a private employer for the performance of any work or service performed in that state. . . The emergency rule specifies that an “employee” is not an “independent contractor,” a “volunteer” or “or a person who serves in a private, non-profit agency without compensation other than expenses.”

Further, from the plain language of this definition, it appears that a person must perform work or services in the State of Florida to be considered an “employee” and the location of the employer is no. is irrelevant. This definition also suggests that applicants are not considered “employees” and therefore are not covered by Florida law because a candidate does not “perform[] any job or service.

In turn, an “independent contractor” – who is exempt from Florida law – is defined as someone who satisfies four of the following six criteria:

  • maintains a separate business with its own work facilities, truck, equipment, materials or similar accommodation apart from the private employer;

  • holds or has applied for a federal employer identification number;

  • receives remuneration for services rendered or work performed and this remuneration is paid to a company, other than the private employer, rather than to an individual;

  • holds one or more bank accounts in the name of a business entity, other than the private employer, for the purpose of paying business expenses or other expenses related to services rendered or work performed for remuneration;

  • performs work or is able to perform work for any entity in addition to or in addition to the private employer of its choice without the need to complete a job application or process; Where

  • receives remuneration for work or services rendered on the basis of a tender or for the completion of a task or set of tasks as defined by a contractual agreement, unless such contractual agreement expressly states that an employment relationship exists.

Alternatively, someone can be considered an “independent contractor” if one of the following conditions is met:

  • The person performs or agrees to perform specific services or works for a specific amount of money and controls the means of performing the services or works;

  • The person incurs the main expenses related to the service or work that he performs or undertakes to perform;

  • The person is responsible for the satisfactory completion of the work or services that he performs or undertakes to perform;

  • The person receives remuneration for the work or services provided for a commission or on a per-job basis and not on any other basis;

  • The person may make a profit or suffer a loss in connection with the performance of works or services;

  • The person has ongoing or recurring business responsibilities or obligations; Where

  • The success or failure of a person’s business depends on the ratio of business revenues to expenses.

The definition of “independent contractor” in the emergency rule is stricter than that used to determine whether someone is an “independent contractor” in other contexts, including for example, for tax purposes.

The definition of “employer” in the emergency rule also departs from other legal definitions of “employer”, as this definition does not include an employee threshold, and it also does not require the employer to be located in the state of Florida. This definition only requires the legal person to “employ[] employees within that state. As the FAQ clarifies, the size of the employer is only important in determining the fine for violating Florida law.

Finally, “department” is defined as “the legal affairs department” and “the functional equivalent of termination” is defined as occurring in two scenarios: (i) when the employee resigns under duress; and (ii) when “the employer, by his actions, has made working conditions so difficult or intolerable that a reasonable person in the employee’s position would feel compelled to resign”. The FAQ further clarifies this definition by noting that employers can also be fined under Florida law if they “have taken adverse action against [an employee] it is the functional equivalent of a landfill.

Complaint process described in the emergency rules

The emergency rule also establishes an administrative complaint and investigation process. In short, any complainant must file a legally sufficient complaint with the Department of Legal Affairs (in accordance with certain form and submission requirements). The Department of Legal Affairs will then investigate the complaint before submitting an investigation report to the person designated by the Attorney General. If the Department of Legal Affairs concludes that there is probable cause for a violation of Florida law, it will need to file a formal administrative complaint and present its case at an evidentiary hearing before an administrative judge. The administrative judge will then make a recommended order to the Department of Legal Affairs, which will then make a final order based on those recommendations. Throughout this process, the Department of Legal Affairs also has the capacity to impose penalties through consent orders. A more detailed discussion of the complaint and investigation process is addressed in the Emergency Rule.


Although the Emergency Rule and FAQs provide additional guidance on Florida law, there are still gaps and conflicts between Florida law and federal regulations, especially in light of recent court decisions on legal challenges to federal guidelines. As Florida employers review vaccine mandates and policies and take action to comply with various laws, regulations, and ordinances, we recommend monitoring legal decisions and issuing additional guidance to determine how best to comply. comply with it. Foley has created a multidisciplinary, multi-jurisdictional team that has prepared a wealth of thematic client resources and is ready to assist clients with the legal and business challenges created by Executive Order 14042, the CMS Immunization Mandate, OSHA ETS and state and local ordinances.