With the state shifting into a new phase of the COVID-19 pandemic, Florida businesses may be interested in requiring customers to provide proof of vaccination prior to providing customers services or allowing customers to enter the business. Doing so, however, may prove difficult because of state and federal law.

As of April 5, all Florida residents became eligible to receive one of the FDA approved vaccines. The latest available data from the Florida Department of Health shows that over six million Floridians have received at least one dose of either the Pfizer or Moderna vaccinations or the one-shot Johnson and Johnson vaccine. With the state shifting into a new phase of the COVID-19 pandemic, Florida businesses may be interested in requiring customers to provide proof of vaccination prior to providing customers services or allowing customers to enter the business. Doing so, however, may prove difficult because of state and federal law.

On April 2, Gov. Ron DeSantis issued Executive Order Number 21-81 because of concerns for Floridians who have religious or health objections to obtaining the vaccine, as well as concerns related to Florida’s economy. EO 21-81 not only prevents Florida state and local governments from issuing vaccine passports, but also prevents all Florida businesses from “requiring patrons or customers to provide any documentation certifying COVID-19 vaccination or post-transmission recovery to gain access to, entry upon, or service from the business.” The executive order provides that businesses that do not comply with the order are not eligible to receive grants from or enter into contracts with the state. Businesses should not ignore the order as it directs Florida state agencies to enforce the order and to
ensure that businesses are in compliance.

EO 21-81 was issued pursuant to the Florida Constitution, which gives the governor general power to promulgate executive orders, and Florida’s Emergency Management Act (FEMA). Under FEMA, the governor has broad powers to issue executive orders that have the force of law during states of emergency. This authority includes the power to create and suspend rules and to direct state agencies to combat the emergency. DeSantis may, for example, use the Department of Business and Professional Regulation (DBPR) to enforce the order.

The DBPR is state agency that regulates licensing and permitting for various industries in Florida, such as construction, bars, restaurants, and even barbers and cosmetologists. DBPR could levy administrative fines against businesses that do not comply with the order, or suspend or revoke the license of a business holder who refuses to comply.

Anticipated Legal Challenges

There are a number of anticipated legal challenges to the EO, though it remains to be seen whether these challenges will gain traction. First, challengers may argue that the EO exceeds DeSantis’ authority under FEMA insofar as banning vaccine passports does not actually combat COVID-19; rather, it protects those who cannot or will not receive the vaccine. Challengers will argue that because the governor exceeded his authority under FEMA, the EO is unlawful. On the other hand, the governor is afforded broad powers under FEMA, and the EO is certainly being issued because of the pandemic, the cause of the current state of emergency in Florida.

Challengers may also assert that the EO impermissibly violates Floridians’ property rights. A state entity that suspends or revokes a license, must take into consideration the license owner’s property rights. Typically, a license holder is entitled to some form of due process, e.g., notice and a hearing, prior to the revocation or suspension of the license. While the state could still revoke or suspend the business owner’s license for failing to comply with the EO, the correct procedures must still be followed by the state. Additionally, businesses may argue that any contracts with state entities that were executed prior to the issuance of the EO cannot be invalidated because of the EO, or at the very least, that businesses should be able to receive what they were due under the contract prior to the EO’s issuance. As to new grants and contracts, however, the state will likely be able to rely on the order to say that it would be illegal for a
noncompliant business to contract with the state.

Additional Roadblocks to Vaccine Passports

In addition to the governor’s executive order, businesses seeking to require proof of vaccination should also be cognizant of anti-discrimination laws. The Americans with Disabilities Act, which prohibits discrimination against disabled people, and Title VII, which prohibits discrimination on account of (among other things) religion, may make it difficult for businesses to condition providing services on customers providing proof of vaccination. If a customer cannot receive the vaccine because of a health or religious concern, a business seeking to require proof of vaccination would have to determine whether a modification exists that would allow the customer to safely use the establishment. This might include providing the unvaccinated customer with PPE, requiring a negative COVID-19 test, and
placing the customer in a socially distanced location. Refusing service to a person who cannot receive the vaccine because of a health or religious reason, however, creates a significant chance for a discrimination claim. So, stringently enforcing vaccine requirements may be a risky proposition for businesses.

Perks and Discounts Might Be the Best Option

The better practice may be to encourage customers to receive the vaccine, rather than actually requiring customers to receive the vaccine to obtain the busiesses’ services. Businesses can provide discounts or other perks to customers who show proof of vaccination. The Miami Heat, for example, are permitting vaccinated fans to enter its arena through a separate gate and then sit in in a section with other vaccinated fans. Providing benefits to customers who have been vaccinated, while still providing services to unvaccinated customers, should allow businesses to side-step potential discrimination claims and encourage customers to receive the COVID-19 vaccine.

Reprinted with permission from the May 4, 2021 edition of Daily Business Review © 2021 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.