Pressure mounts for health care providers: Florida threatens fines for complying with the federal vaccination mandate

Florida’s Agency for Health Care Administration sent an email threatening Florida health care providers with fines if they comply with a federal vaccination mandate.

While many experts are advising clients to follow federal law, David Miller, a Miami-based employment attorney at the Bryant Miller Olive law firm, equated the situation faced by many Florida employers as being “a bone between two dogs,” with the canines being the state and federal governments.

“If I were a health care provider subject to what’s going on here, I wouldn’t know whether to laugh or to cry or just put my fist through the drywall,” he said.

The Biden Administration on Nov. 4 laid out requirements for COVID-19 vaccinations for staff at nearly all Medicare and Medicaid-certified health care facilities. The rule was projected to affect more than 17 million workers in 76,000 facilities, as well as home health care providers.

The Centers for Medicare and Medicaid services threatened fines as well as potential termination from the program for health care providers that did not comply, which would potentially affect options for the nearly 4.7 million Floridians who use Medicare and Medicaid as their health insurance.

Florida Gov. Ron DeSantis criticized the mandate, sued to block it alongside several other states, and fought back with new state laws on Nov. 18 that banned all private companies — including health care facilities — from mandating vaccines unless they offered employees exemptions beyond the standard medical or religious exemptions offered by Biden’s mandate.

“The CMS mandate lacks any coherent justification in terms of public health. Firing unvaccinated health care workers during a pandemic – when there was already a shortage of health care workers to begin with – is absurd and dangerous,” said DeSantis spokesperson Christina Pushaw on Wednesday.

Porpoise Evans, an employment lawyer at Weiss Serota Helfman Cole & Bierman in Miami, said if health care providers absorb heavy fines from the state, they could be driven out of business and “everybody could end up out of a job.”

He said most employers are not inclined to fire workers for refusing a COVID shot.

“The vast majority of my clients have zero interest in terminating people,” he said.

In its email to health care workers statewide, the Florida AHCA reaffirmed its commitment to following state law over federal law and warned that violators could face hefty fines from the Florida Attorney General’s office.

“The Florida Agency for Health Care Administration (AHCA) will follow Florida law. Accordingly, AHCA will not survey for compliance with the CMS vaccine mandate rule,” the email read. “The Attorney General’s Office is authorized to impose administrative fines up to $10,000 per violation for an employer with fewer than 100 employees and up to $50,000 per violation for an employer with 100 or more employees.”

Now, health care providers don’t know what to make of the conflicting orders.

At True Health, which operates seven federally funded community health clinics in the metro Orlando area, CEO Janelle Dunn said the state’s warning has left the nonprofit organization in limbo in regards to vaccination mandates.

Just under half of the organization’s employees have voluntarily been vaccinated for COVID-19 so far, Dunn added, saying administrators have “respected” both workers who choose vaccination and those who choose to hold off.

“We are still working with our employment attorney on the issue, so our approach at this time is to just hold off,” she said. “We’re going to wait and see what happens at the Supreme Court level before we make any final decisions.”

The U.S. Supreme Court is conducting a hearing Friday on the requirements for health care workers set up by the federal Centers for Medicare & Medicaid Services, as well as the broader mandate devised by the Occupational Safety and Health Administration for businesses employing more than 100 people.

Meredith Plummer, an employment attorney at the Gunster law firm in West Palm Beach, said the situation will become more clear after the court rules, but despite these ongoing legal challenges, the Gunster firm is advising its employer-clients to be ready for the possibility that the federal vaccine requirements could stand after the ruling.

“We tell our clients to be prepared to be in compliance with those deadlines and to put policies in place and put employees on notice as to what’s going on,” Plummer said. “It’s still up in the air.”

Meanwhile, some health care systems are counting on avoiding retroactive punishment..

Florida health care facilities such as Holy Cross Health in Fort Lauderdale and the Memorial Health System, based in Hollywood, achieved high rates of vaccinations before any state or federal laws and rules were activated. Holy Cross imposed a mandate; Memorial waged a strong education program.

“Holy Cross Health is committed to the safety of our colleagues, patients and communities,” the company said in a statement Tuesday to the South Florida Sun Sentinel. “Because of this, we implemented a COVID-19 vaccine requirement prior to any CMS regulations or Florida state laws being in place on the matter. We are compliant with current Florida Law governing the COVID-19 vaccine.”

Memorial’s 14,000-member work force is more than 90% vaccinated, said Margie Vargas, senior vice president and human resources officer of the six-hospital group in South Broward County.

“We encourage it through education and reliance on the science,” Vargas said. “But we’re not requiring it.”

Other large hospital systems did not share how they will juggle demands from state and federal laws. AdventHealth Central Florida spokesperson Jeff Grainger said hospital leaders are “aware of the recent announcements and are monitoring the situation,” whereas Orlando Health spokesperson Nicole Ray said the hospital system is reviewing guidelines and will “take appropriate steps.”

Health care providers in Florida were almost spared from having to choose between federal and state law when judges temporarily paused the federal mandate nationwide in early December, erasing the former Dec. 6 deadline for a first shot and prompting many hospital systems, such as AdventHealth, to cancel their vaccination requirements.

However, the Biden Administration then appealed that decision and the federal government was once again allowed to enforce a health care worker vaccination mandate in 25 states, including Florida, on Dec. 15.

The current deadline to get a first shot is Jan. 27, with a second due by Feb. 28 for those receiving vaccines that require double doses.