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Florida labor attorney says OSHA COVID vaccine mandate would override new state law if upheld

A health care worker fills a syringe with the Pfizer COVID-19 vaccine.
Lynne Sladky
/
AP
A health care worker fills a syringe with the Pfizer COVID-19 vaccine.

Florida’s new policy governing COVID-19 vaccination requirements for private-sector employees could eventually force businesses into choosing between following state law or a federal rule.

The U.S. Occupational Safety and Health Administration's requirement for employees at businesses with 100 employees or more to get vaccinated — unless they have a religious or medical exemption, submit weekly negative COVID-19 test results and wear face coverings on the job — is on hold after a judge temporarily blocked it earlier this month. The agency recently announced it had suspended enforcement of the rule pending litigation.

A new state law enacted last week bars private-sector employers from issuing vaccination requirements unless they give workers more ways to opt-out than the federal law allows. In addition to providing medical and religious exemptions, it gives them an opt-out for "natural immunity" from a prior COVID-19 infection, wearing personal protective equipment and submitting regular negative coronavirus test results. Unlike the federal rule, it includes pregnancy as a medical exemption and doesn't require those opting out to get tested regularly and wear a mask.

Under the new state law, companies with 100 or more employees could get fined $50,000 per violation. Smaller businesses could face $10,000 fines if they comply with the federal rule instead of the new state policy.

Labor Law Attorney David Miller says if the OSHA rule is ultimately upheld it would take precedence over the state law.

“Then if the state decides they’re going to fine you for complying with the federal law, your number one defense is going to be the state government says I can’t; the federal government says I must,” Miller said. "I've got to go with the feds because they have control."

Several lawsuits against COVID-19 vaccination requirements, in general, are moving through the courts. Miller says if any of these cases reach the U.S. Supreme Court the question will likely center on individual rights to bodily autonomy. "The argument that is going to be made, and has already been made, is going to be that the individual has a fundamental right to control what’s injected into his body," he said. "And the Supreme Court is going to have to decide.”