Are Florida Employers Stuck Between a Rock and a Hard Place?

 

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.

Yikes!

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.

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  1. Nohaaj Coolidge
    Nohaaj
    @Nohaaj

    Thank you for the excellent primary review.  Of course, eventually this will be in the courts. It is interesting to see the many different paths that it could go.  

    In your Saturday morning musings, if you were advising that employer in Florida, what do you think would be the best path for success, (presuming that employer would prefer to not enforce a mandate)?   Alternately, if you were an employer that agreed with mandates, what would be the best approach to contest Florida’s law? 

    • #1
  2. Nohaaj Coolidge
    Nohaaj
    @Nohaaj

    Nohaaj (View Comment):

    Thank you for the excellent primary review. Of course, eventually this will be in the courts. It is interesting to see the many different paths that it could go.

    In your Saturday morning musings, if you were advising that employer in Florida, what do you think would be the best path for success, (presuming that employer would prefer to not enforce a mandate)? Alternately, if you were an employer that agreed with mandates, what would be the best approach to contest Florida’s law?

    nb:  this is one of those situations, when even if we don’t like lawyers, they are truly required! 

    • #2
  3. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    Of course, no law has actually been passed, so the legality of the action has yet to be determined, because all we have now is China Joe saying he’s mandating it. But until we actually have it on the books, China Joe can’t be taken to court.

    See here: https://ricochet.com/1071938/about-those-vaccine-mandates/

    The problem is employers enthusiastically forcing something that isn’t (yet?) a law.

    Take your employer to court today. And may a million lawsuits bloom!

    • #3
  4. Mark Camp Member
    Mark Camp
    @MarkCamp

    Jerry Giordano (Arizona Patrio…: I hope that some of you find it interesting,

    Extremely!!  Thx, Jerry.

    • #4
  5. Stina Member
    Stina
    @CM

    Surely there must be some kind of distinction in the federal mandate not being law and the Florida law being law.

    Is there a there there?

    • #5
  6. Mark Camp Member
    Mark Camp
    @MarkCamp

    Nohaaj (View Comment):
    if you were advising that employer in Florida, what do you think would be the best path for success,

    If it were I, I’d start with this question: ‘How much you got?’

    • #6
  7. cdor Member
    cdor
    @cdor

    ” 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.”

    This is the key. Once injected a return to the previous condition is impossible. Therefore, any wise judge will understand that an injunction must be against the Federal mandate and not the Florida law. It is interesting to note the battle between a mandate and a law. That is one argument I would present if arguing this case. I am not a lawyer, but we do have a law on the books and engrained within society for decades. It is called HIPAA and it was passed by Congress, signed by the President, and integrated into our social and legal behavior for decades. The Biden mandate forces employers to break the HIPAA law. Beyond that, there is the solid argument with data now available, that the efficacy of the vaccine is somewhat negligible, while its dangers are still quite unknown. People should have a right to defend themselves against that danger. It is almost proof of the lack of efficacy of the vaccine that the administration is accusing those not taking it of causing imminent danger to those who do. If it works, those who take it should be out of danger, yes?

    • #7
  8. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Is an Executive Order the same as statutory federal law when invoking the Supremacy Clause?

    With a preliminary injunction not taking the jab is reversible but taking the jab is not reversible.

    • #8
  9. W Bob Member
    W Bob
    @WBob

    The mandate isn’t a law, but it presumably was issued in accordance with a law, however tenuous that connection might be. 

    I can’t believe that individual citizens are faced with the dilemma Jerry outlines. There should be a law, or maybe just a general principle that courts recognize, that makes it clear that individuals are not tasked with the responsibility of determining whether laws are legal or constitutional. So they can’t be held liable in the situation Jerry mentioned, even if the mandate were later determined to be illegal. If this protection isn’t already in the law, why isn’t it? 

    • #9
  10. Bob Thompson Member
    Bob Thompson
    @BobThompson

    I can remember when the ACLU would step forward to defend individual constitutional rights when they were threatened like this. We need someone to do this chore now.

    • #10
  11. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    DrewInWisconsin, Oaf (View Comment):

    Of course, no law has actually been passed, so the legality of the action has yet to be determined, because all we have now is China Joe saying he’s mandating it. But until we actually have it on the books, China Joe can’t be taken to court.

    See here: https://ricochet.com/1071938/about-those-vaccine-mandates/

    The problem is employers enthusiastically forcing something that isn’t (yet?) a law.

    Take your employer to court today. And may a million lawsuits bloom!

    Stina (View Comment):

    Surely there must be some kind of distinction in the federal mandate not being law and the Florida law being law.

    Is there a there there?

    This issue is complicated, too, and I haven’t looked into the details.

    Drew, you’re correct that the legality of the federal action has not been determined.  I don’t think that you’re correct in suggesting that it can’t be addressed in court, at least as I understand the situation, though I’m not completely sure.  On looking a bit further, it appears that President Biden issued an executive order requiring federal contractors to require vaccination of their employees.  I think that this would be immediately effective, and could be challenged now.  He also directed OSHA to develop a rule, and it looks like there is an Emergency Temporary Standard from OSHA that is currently under final review, but apparently has not yet been issued.  If this is correct, then I would agree with you that this portion of the federal mandate cannot yet be taken to court.

    Stina, there’s not a “law” passed by Congress, but this does not mean that there is no enforceable federal action.  Within his area of executive power, the President can issue executive orders that have the “force of law.”  Unless authorized by some general statutory grant of power, I don’t expect that he could make violation a crime or could impose a fine.  But he probably could require federal contractors to comply, with the sanction being that they won’t get any more federal contracts if they don’t.  Also, in the OSHA area, I think that there’s a law authorizing OSHA to make specific rules, and applying sanctions for violation of such rules.

    Such delegation of power to administrative agencies is somewhat controversial, though it is generally supported by current federal judicial decisions.  Changing it would be a big deal — as an example, doing so would invalidate the federal motor vehicle safety standards.  I generally side with those favoring judicial action to prohibit such delegation, but this is contrary to current precedent.

    • #11
  12. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Nohaaj (View Comment):

    Thank you for the excellent primary review. Of course, eventually this will be in the courts. It is interesting to see the many different paths that it could go.

    In your Saturday morning musings, if you were advising that employer in Florida, what do you think would be the best path for success, (presuming that employer would prefer to not enforce a mandate)? Alternately, if you were an employer that agreed with mandates, what would be the best approach to contest Florida’s law?

    My advice would not depend on whether or not the particular employer agreed or disagreed with the mandate.  Either way, the employer is between a rock and a hard place.

    If I were faced with the issue, as a legal matter, I’d advise filing a declaratory judgment action seeking a preliminary injunction.  As a practical matter, I’d advise my client to see if he could get some help from other business interests — perhaps an existing industry group, or merely a collection of other employers facing the same problem, for cost-sharing purposes.

    An additional step which I would advise, but didn’t mention, is to seek a TRO (temporary restraining order).  This is essentially a preliminary-preliminary injunction, without even having a hearing.  TROs are usually very short-term — something like 10 days or so, to give the court and the parties time to have a hearing on the preliminary injunction.

    I’ll give an example in another comment, as some of you seem to be interested.

    • #12
  13. Bob Thompson Member
    Bob Thompson
    @BobThompson

    Jerry Giordano (Arizona Patrio… (View Comment):

    Such delegation of power to administrative agencies is somewhat controversial, though it is generally supported by current federal judicial decisions.  Changing it would be a big deal — as an example, doing so would invalidate the federal motor vehicle safety standards.  I generally side with those favoring judicial action to prohibit such delegation, but this is contrary to current precedent.

    Has this been challenged constitutionally, is that the precedent you are referencing here?

    • #13
  14. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Here’s an example of how the TRO and preliminary injunction process works.  I’m not going to describe a particular case due to by obligation of confidentiality.  This is a hypothetical, with details similar to several of my prior cases.

    Say that I have a client who is facing foreclosure, and has some potentially valid objection, like a disagreement about the balance due.  The foreclosure is looming — say next week.

    I would draft and file a complaint setting forth the claim, requesting both a TRO and a preliminary injunction.  I would draft a separate application for entry of a TRO, and a proposed order to show cause (OSC) setting a hearing on the preliminary injunction.  Ordinary service would be too slow, so my proposed OSC would include the details of how to give notice.  In a typical case, this would be via email to the foreclosure trustee (who is often a lawyer).

    In conjunction with filing these, a judge would be assigned.  If it’s in Tucson, it will be a judge that I know.  I’d give a call to his chambers, to give his staff a head’s up that I had filed.

    If there’s not time to set a hearing before the foreclosure, the judge would almost certainly grant the TRO, postponing the foreclosure, but only for a very short time.  In getting such relief, it helps to have credibility with the judge from prior cases — and often, from prior dealings with the judge before his appointment, when we were fellow lawyers.  This gets more common for me, as I get older.  I don’t just get to know the judges on the bench, but there’s a high probability that I already know a newly-appointed judge.

    Anyway, the judge would pick a date and time for a hearing, which would be filled out on my proposed OSC and then signed by the judge.  I would get the signed OSC to the opposing party ASAP, using the method approved by the judge.  The OSC would typically also include a requirement that I file proof of having given such notice.

    Now the practicalities enter into the situation.  There’s a fair chance that I already know the lawyer who is acting as foreclosure trustee.  Even if I don’t, I’ll give him a call, discuss the situation, and ask him to get his client to agree to postpone the trustee’s sale, to avoid the expense of the hearing.  This will usually be agreed, with a brief postponement (maybe 30 days or so).  I’d then let the judge know, and the hearing would be rescheduled.

    If my client has a decent case, we’d work on settlement in the meantime, and perhaps bump the hearing further by agreement, if we’re making progress.

    • #14
  15. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Bob Thompson (View Comment):

    Jerry Giordano (Arizona Patrio… (View Comment):

    Such delegation of power to administrative agencies is somewhat controversial, though it is generally supported by current federal judicial decisions. Changing it would be a big deal — as an example, doing so would invalidate the federal motor vehicle safety standards. I generally side with those favoring judicial action to prohibit such delegation, but this is contrary to current precedent.

    Has this been challenged constitutionally, is that the precedent you are referencing here?

    Bob, if I’m understanding your question correctly, the answer is “yes.”  The issue is the “nondelegation doctrine” in the field of administrative law.  It is based on a separation-of-powers argument.  It has generally been ineffective, as the federal courts have permitted Congress to delegate rulemaking power to administrative agencies, generally limited by the requirement that Congress clearly delineate the general policy, the agency with authority to apply it, and the boundaries of such delegated authority.

    The details are complicated.  Here’s a Wikipedia article that gives an overview, if you want more information.  (I know, Wikipedia, but I read it over briefly and it looks pretty accurate to me.)

    • #15
  16. The Reticulator Member
    The Reticulator
    @TheReticulator

    Stina (View Comment):

    Surely there must be some kind of distinction in the federal mandate not being law and the Florida law being law.

    Is there a there there?

    Some might find that the thing to fear is not so much federal law as federal vengeance.   That may be why they are taking the federal mandate seriously. 

    • #16
  17. Hang On Member
    Hang On
    @HangOn

    Does the individual employer have to act as an individual employer, or could he band together with other employers? That would seem to be the way to proceed. Band together.

    • #17
  18. DaveSchmidt Coolidge
    DaveSchmidt
    @DaveSchmidt

    DrewInWisconsin, Oaf (View Comment):

    Of course, no law has actually been passed, so the legality of the action has yet to be determined, because all we have now is China Joe saying he’s mandating it. But until we actually have it on the books, China Joe can’t be taken to court.

    See here: https://ricochet.com/1071938/about-those-vaccine-mandates/

    The problem is employers enthusiastically forcing something that isn’t (yet?) a law.

    Take your employer to court today. And may a million lawsuits bloom!

    Across the country and in multiple levels of government we are seeing extra-legal “mandates.”  

    • #18
  19. Jim McConnell Member
    Jim McConnell
    @JimMcConnell

    Did OSHA ever issue that mandate that Biden talked about? I haven’t read of it in the local news.

    • #19
  20. Fritz Coolidge
    Fritz
    @Fritz

    My understanding regarding the yet to be issued OSHA mandate is that to be a “rule” with the force of law requires compliance with the Administrative Procedures Act. This involves following the steps of (a) publishing a proposed regulation, (b) providing a period of time for public comment, (c) responding to the comments when finalizing the proposal, and (d) publishing a final regulation to take effect so many days after its publication.

    Because that process takes weeks or months, the proposal instead is for OSHA to issue an “Emergency Temporary Standard”, which bypasses the APA. Further, from my research, an ETS has to be in response to an imminent threat of a grave danger in a workplace setting, or some such formulation. Hard to see how not being vaccinated could possibly meet that threshold, if one reflects on the “heroes” doctors and nurses were called for the last 18 months, as well as other groups of “essential workers” in trucking, grocery stores, and first responders most of whom were  not vaccinated for the most part through the pandemic. Where’s proof of the grave danger?   

    • #20
  21. cdor Member
    cdor
    @cdor

    The Reticulator (View Comment):

    Stina (View Comment):

    Surely there must be some kind of distinction in the federal mandate not being law and the Florida law being law.

    Is there a there there?

    Some might find that the thing to fear is not so much federal law as federal vengeance. That may be why they are taking the federal mandate seriously.

    No doubt that is true for some corporations. Unfortunately, for many corporations getting the green light on mandating vaccines is just what they wanted because they know how much it antagonizes their employees. This way they can blame it on the “gubmint”. Of course, I am merely guessing. For me, fearing the wrath of my employees, or at least being sensitive to their fears and privacy would be of utmost importance.

    • #21
  22. DrewInWisconsin, Oaf Member
    DrewInWisconsin, Oaf
    @DrewInWisconsin

    ^ Answered above.

    • #22
  23. Jerry Giordano (Arizona Patriot) Member
    Jerry Giordano (Arizona Patriot)
    @ArizonaPatriot

    Hang On (View Comment):

    Does the individual employer have to act as an individual employer, or could he band together with other employers? That would seem to be the way to proceed. Band together.

    There would have to be at least one named plaintiff.

    It’s possible that the named plaintiff could be some sort of industry group or association.  I think that this was the approach taken by the plaintiff in the recent Harvard race preferences case, which was brought by some sort of Asian student association, if I recall correctly.  In the Harvard case, there was a special reason to do this, because it avoids the risk that the case would be rendered moot by the graduation of an individual named plaintiff.

    If I were advising a client, I would not recommend “banding together’ through an industry group or association.  This would create a possible standing problem, with little benefit.

    Another possibility is to bring a case with multiple named plaintiffs, if several employers could be found who would agree to share the expense.  This would require conflict waivers by the clients, but unless there were some odd facts involved, I don’t think that such a waiver would present a problem in the present circumstances.

    [FYI, the rule for lawyers regarding possible conflicts of interest in the representation of multiple clients is to require client consent, but the lawyer is not allowed to even ask unless it is reasonable to waive the conflict in the circumstances.  It often is, but not always.]

    • #23
  24. Randy Webster Member
    Randy Webster
    @RandyWebster

    Jerry Giordano (Arizona Patrio…: 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. 

    Has the government issued these mandates, or Joe Biden?

    • #24
  25. Stina Member
    Stina
    @CM

    Randy Webster (View Comment):

    Jerry Giordano (Arizona Patrio…: 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.

    Has the government issued these mandates, or Joe Biden?

    The only EO in existence right now is against contractors.

    The rest are rumors, so lawsuits can’t be filed while there are rumors. The only way to halt is to go against your employer at this point (if it’s not an contractor).

    • #25
  26. Randy Webster Member
    Randy Webster
    @RandyWebster

    Stina (View Comment):

    Randy Webster (View Comment):

    Jerry Giordano (Arizona Patrio…: 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.

    Has the government issued these mandates, or Joe Biden?

    The only EO in existence right now is against contractors.

    The rest are rumors, so lawsuits can’t be filed while there are rumors. The only way to halt is to go against your employer at this point (if it’s not an contractor).

    When you say contractors, do you mean contractors who work for the government?  Most don’t.

    • #26
  27. Stina Member
    Stina
    @CM

    Randy Webster (View Comment):

    Stina (View Comment):

    Randy Webster (View Comment):

    Jerry Giordano (Arizona Patrio…: 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.

    Has the government issued these mandates, or Joe Biden?

    The only EO in existence right now is against contractors.

    The rest are rumors, so lawsuits can’t be filed while there are rumors. The only way to halt is to go against your employer at this point (if it’s not an contractor).

    When you say contractors, do you mean contractors who work for the government? Most don’t.

    Yes. Contractors do government and all who are involved in such contracts. I haven’t read the EO, but I know my husband is being forced under the EO.

    • #27
  28. EHerring Coolidge
    EHerring
    @EHerring

    In a free country, DeSantis would be joined by 39 other governors while the useful suspects would be celebrating the government mandate in their 10 states.

    • #28
  29. Chuck Thatcher
    Chuck
    @Chuckles

    A small business is one thing, a multi-state corporation another.

    I know there’s a cost, but could a small business change its employees into private contractors?  Or split the business into smaller subunits of less than 100 employees each?

    • #29
  30. The Reticulator Member
    The Reticulator
    @TheReticulator

    Chuck (View Comment):
    I know there’s a cost, but could a small business change its employees into private contractors?  Or split the business into smaller subunits of less than 100 employees each?

    There have long been tax laws that prohibit or discourage a business from treating employees as private contractors, unless they really are private contractors who work for multiple clients.   The govt hates them anyway.  

    • #30