Florida Governor Ron DeSantis suspended all local COVID-19 emergency orders by executive order on Monday, May 3, 2021, while signing into law, SB 2006, which includes new restrictions and limits on future state and local emergency powers.
SB 2006 is loaded with measures aimed at preventing ongoing business closures, business interference and ensuring ongoing access to government, business and educational services with or without proof of vaccinations. The controversial bill also substantively limited the authority of future governor’s to pass restrictive business closure orders like we’ve seen in California and New York. However, many have been left questioning whether the Governor, or even the Legislature, have the authority to override local emergency orders or restrict mayoral authority in this manner. Local mayors may challenge the Governor’s controversial move as it effectively limits their authority while city and county commissioners are given more discretion and authority to overrule mayors, if needed. While the new law makes it more difficult for local governments to respond to public emergencies in the future by requiring emergency orders to be narrowly tailored and extended in only seven-day increments for a total of 42 days, the new parameters do help with eliminating the voluminous and overly generalized orders we saw last year that made it very difficult for businesses to operate or even develop their own effective social distancing policies. Currently, such orders can be extended indefinitely, and we have all seen what extreme hardships that can create for business owners and operators. SB 2006, however, only relates to official emergency orders. It does not prevent local jurisdictions from passing ordinances through their regular procedures or prevent businesses from adopting any health and safety measures needed to protect patrons on their premises during any emergency.
Gov. DeSantis also signed Executive Order 21-102 this week, invalidating all remaining COVID related emergency orders at both the State and local level. The sudden suspension of emergency orders throughout the State left business owners and local officials confused on current operating requirements. Miami-Dade County’s mayor lashed back at the Governor pointing to the obvious fact that lifting emergency orders does not lift the pandemic. This Governor’s order, however, only invalidates prior official emergency orders relating to COVID operational restrictions and mask mandates. It does not prevent businesses from adopting their own safety protocols, including requiring the use of masks, or local governments from passing social distancing ordinances or other safety measures through their usual ordinance making processes.
Truth be told though, most restaurants and bar operators throughout the state have been slowly dropping strict social distancing requirements regardless of local mandates likely as a result of weak enforcement on compliance and ongoing vaccination efforts. Those business owners that prefer to continue with strict social distancing requirements are at liberty to do so with the exception of requiring proof of vaccination for patrons and guests. Accordingly, we are not likely to see dramatic changes in business operations at this time. The hospitality industry has flipped the “on” switch in Florida and it is unlikely we’ll see a backwards turn despite growing concerns over rising infection rates in some areas. While we may see businesses adopt more strict social distancing policies should another resurgence create a severe public health risk, businesses have learned to adapt and adjust quickly to protect patrons and staff and so complete closures may not be necessary in the future.
With respect to vaccine passports, the restrictions contained in SB 2006 focus on preventing government offices, schools and private businesses from restricting access to enter or receive services based on vaccination. Business entities will not be allowed to require patrons or customers to provide
any documentation certifying COVID-19 vaccination or post-infection recovery to gain access to, entry upon, or service from the business operations in Florida. This subsection does not otherwise restrict businesses from instituting screening protocols consistent with authoritative or controlling government-issued guidance to protect public health. The language is clear that the restriction in this section relating specifically to private businesses, only applies to patrons or customers and not necessarily employees. Several large corporations have been incentivizing employees to get vaccinated by offering additional paid time off or even health bonuses. The legality of these incentives and mandating employee vaccination is yet to be firmly established and we’ll see as we head toward 2022 if the issue is litigated or decided in court.