Keeping up with the various federal agency guidance and state mandates regarding COVID-19 can be overwhelming for healthcare providers especially when such guidance often changes daily. Healthcare providers need to be aware of newly enacted Florida laws regarding COVID-19 which were effective July 1, 2021.
Vaccine Passports
Section 381.00316, Florida Statutes (“COVID-19 Vaccine Documentation”) prohibits business entities (both for-profit and not-for-profit) from requiring patrons or customers to provide proof of COVID-19 vaccination (“vaccine passports”) or recovery from COVID-19 to access or obtain services in Florida. This law also applies to educational institutions (both public and private) and governmental entities.
The law specifically does not prohibit implementing screening protocols consistent with federal guidelines (COVID-19 screening questionnaire, temperature checks and face masks).
Violation of this law can result in fines of up to $5,000 per violation, and potentially per individual that was denied access or services.
This ban against “vaccine passports” does not apply to healthcare providers, as defined in Section 768.38, Florida Statutes, including but not limited to, licensed healthcare practitioners, physician offices, ambulatory surgery centers, hospitals, and pharmacies.
Vaccine Mandates and Employees
The new law against vaccine passports does not apply to employees of a business. Employers can ask employees and job applicants whether they have been vaccinated against COVID-19.
Furthermore, on May 28, 2021, the Equal Employment Opportunity Commission issued guidance confirming employers can require their employees to get vaccinated as a condition of employment; provided exceptions are made for individuals with disabilities or sincerely held religious beliefs against vaccination, unless providing such an accommodation would pose an undue hardship for the employer. If the disability or religious belief is substantiated, the employer should consider reasonable accommodations such as (i.e. N95 mask, regular COVID-19 testing, remote work, etc.).
Civil Liability
Section 768.381, Florida Statutes (“COVID-19 Related Claims Against Healthcare Providers”), provides liability protection to individual healthcare providers and facilities for civil liability claims that arise from or are related to COVID-19 and include any such claim for damages, injury, or death. A few examples include:
- Diagnosis or treatment of a person for COVID-19, or the failure to do so;
- Provision of a novel/experimental treatment;
- Transmission of COVID-19; or
- Delay or cancellation of a surgery, procedure, test or appointment due to a provider’s interpretation of government-issued standards or authoritative guidance relating to COVID-19.
Complaints against a healthcare providers must state facts in sufficient detail to support each element of a claim. Plaintiffs can only prevail upon proving the healthcare provider was grossly negligent or engaged in intentional misconduct.
A healthcare provider may be able to avoid liability by demonstrating (i) substantial compliance with government-issued standards or standard infectious disease practices, or (ii) an inability to comply with the appropriate standards because of medical supply shortages.
Although the law doesn’t prevent COVID-19 related lawsuits, it imposes sufficient hurdles on a plaintiff filing a claim. Furthermore, the statute of limitations for a COVID-19 related claim is limited to one year.
If you have questions regarding the new COVID-19 laws, or need assistance with preparing or updating policies, contact Elizabeth Shaw at liz@rezlegal.com.
Article by Elizabeth Shaw as appeared in “Medical Professionals Jacksonville and the Beaches Magazine” Published September 2021