State health department sets workplace COVID vaccine rules. There’s a lot of leeway
Last week, Gov. Ron DeSantis and the Florida Legislature made it easy for a vaccine-hesitant person to opt out of a workplace coronavirus vaccine requirement.
Then hours later, the Florida Department of Health made opting out even easier.
On Thursday, Surgeon General Dr. Joseph Ladapo signed an emergency rule outlining a number of exemptions an employee can claim to avoid a workplace vaccine mandate. Earlier that day, DeSantis had signed a law restricting a company’s ability to mandate vaccines unless they offered the following carve-outs:
Those with medical reasons not to get the vaccine — including pregnancy or anticipated pregnancy — may opt out.
Those who have already been infected with COVID-19 are exempt.
Those with a religious objection to vaccination may opt out.
Those who agree to periodic testing can claim an exemption.
Those who agree to wear personal protective equipment may opt out.
Experts say the rules handed down by the state health department come with loopholes that are easily exploited by workers who do not wish to get vaccinated.
“For folks that really don’t want to get vaccinated, these exemptions provide countless ways to do that,” said Marissa Baker, an assistant professor of occupational health at the University of Washington’s School of Public Health.
Before Ladapo signed the emergency rule, a number of details in the exemptions were undefined. For example, the Legislature left it up to the Department of Health to create a process for an employee to show they are immune going forward because of a prior COVID-19 infection.
POSITIVE COVID TESTS
On Thursday, the Department of Health weighed in: An employee may show evidence of any prior positive test, or a positive test for COVID-19 antibodies. Even a positive test from the beginning of the pandemic appears to be proof enough to warrant a vaccine exemption, according to the rule and an associated form.
That’s an expansive definition, said Derrick Cummings, a professor and infectious disease epidemiologist at the University of Florida’s Emerging Pathogens Institute. There is evidence that catching COVID-19 offers some protection from future infection. But that protection appears to wane over time, and it varies depending on the severity of the initial infection. It also depends on the strain of COVID-19 a person comes into contact with.
“If the infection occurred quite a while ago, the science says that that immunity is insufficient to protect people,” Cummings said. “But even if it were recent, the data suggests those people should get vaccinated.”
When asked whether the department’s rule is making the case that natural immunity lasts forever, a department spokesperson referred a reporter back to the rule.
Experts also took issue with the state’s definition of “anticipated pregnancy.” The Department of Health rule says anyone who is of “child-bearing age” who “intends to become pregnant” may claim a medical exemption to a vaccine mandate.
“The employer shall accept the representations of the employee in regard to the employee’s intent to become pregnant,” the rule reads.
Baker noted that such language could include someone who plans to get pregnant years from the day they seek the exemption. The professor also contended that any rule legitimizing the idea that it’s dangerous for pregnant people to get the vaccine is scientifically unsound because pregnancy is a known risk factor for severe COVID-19.
A MATTER OF FAITH
The religious carve-out is also fairly broad. An employee simply has to sign a form saying “I decline the COVID-19 vaccination because of a sincerely held religious belief, which may include a sincerely held moral or ethical
belief.”
Christina Pushaw, a DeSantis spokesperson, argued that federal workplace nondiscrimination law has been interpreted over the years to protect a wide range of religious beliefs.
“Like medical decisions, beliefs are deeply personal for many people and not something workers should be compelled to discuss or “prove” to [human resources],” Pushaw wrote in a Friday email.
A Biden administration rule mandating vaccines or testing in workplaces of 100 or more employees also comes with a religious carve-out. So does a federal rule mandating the shots in some healthcare facilities. According to the federal Equal Employment Opportunity Commission, employers should assume requests for vaccination exemptions based on religion are made in good faith — unless “an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief.”
Baker said Florida’s rules are right to accommodate different religious beliefs. But she said she’d like to see additional rules requiring mask wearing
and regular testing from workers who avail themselves of religious or medical exemptions.
When it does weigh in on testing, the Department of Health rule restricts the frequency with which an employer can test an unvaccinated employee. The company may require a test “no more than weekly,” according to the rules.
Tom Unnasch, a professor at the University of South Florida’s College of
Public Health, said rules that allow more frequent testing would catch a greater number of workplace infections.
As the world heads into another COVID-19 wave, Unnasch argued that vaccination is the way out of the pandemic.
“It’s pretty clear if you look at what’s going on worldwide that the one thing that can beat this thing is vaccination,” he said.