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At the moment, I’m glad that I’m not a Florida employer.
As I understand it, the federal government has issued various vaccine mandate policies that would require some Florida employers to require their employees to be vaccinated. For purposes of this discussion, I’ll assume that I’m one of these employers, and that I face significant federal sanctions if I fail to comply.
On the other hand, as I understand it, Florida has passed a law that prohibits Florida employers from requiring their employees to be vaccinated. I face significant state sanctions if I fail to comply.
As a hypothetical Florida employer, what am I to do?
Legally, the outcome is both clear and murky. If the federal requirement is legal, then the Florida law is unenforceable under the Supremacy Clause. The technical term for this is conflict preemption. The murkiness arises because, if the federal requirement is invalid under federal law, then I would have no preemption defense to subsequent enforcement of the Florida law against me, if I were to comply with the federal mandate.
As a hypothetical Florida employer — and as an actual Arizona lawyer — I don’t know whether or not the federal mandate is legal. Maybe it is, maybe it isn’t. Yet as a hypothetical Florida employer, I have to act. If I disregard the federal mandate and it turns out to be legal, I’ll get hammered by the feds. If I obey the federal mandate and it turns out to be illegal, I’ll get hammered by the Florida authorities.
What could I do?
There is an option, but it is costly. I could file a lawsuit seeking declaratory relief. It would be preferable, but not necessary, to file such a suit in federal court. Essentially, I’d be asking the court to tell me what to do. The defendants would be the federal government and the Florida government, or the relevant officials thereof.
Such a lawsuit would take time, however, and in the interim, I am still stuck between a rock and a hard place.
There is a solution to this, but it’s a bit more costly. In my hypothetical lawsuit, I could seek a preliminary injunction. The point of such a preliminary injunction would be to preserve the status quo, so I’d have to ask the judge to temporarily block enforcement of the federal mandate. Asking the judge to block enforcement of the Florida law would not preserve the status quo, in this case, because this relief would require me to comply with the federal mandate and therefore require my employees to be vaccinated, which would resolve the case as a practical matter. My hypothetical employees could not be un-jabbed.
I don’t like the idea of every Florida employer having to face such a decision. I wonder whether Gov. DeSantis, who I like, thought about this when the Florida law was passed.
There might be another route in litigation. I, or some other Florida employer stuck between the same rock and the same hard place, could file a class action lawsuit on behalf of all such Florida employers. This would probably lead to an argument over whether the technical requirements for such a class action are met. (The technical term for this is class certification.) The plaintiff in such a class action might be able to obtain a statewide preliminary injunction blocking enforcement of the federal mandate.
I can tell you that it’s generally pretty hard to get a preliminary injunction. This would be a pretty strong case. The judge wouldn’t have to agree, though, and it’s a difficult thing to review on appeal, particularly if the request is denied by the trial court.
I guess that this is the sort of the thing that a nerdy lawyer muses about on a Saturday morning. I hope that some of you find it interesting, and I’d like to read any thoughts, corrections, or questions that you might have.Published in