There’s nowhere quite like Florida. The Sunshine State is a lush, diverse place teeming with natural splendor and economic opportunity. From bustling cities to quiet beaches, humid wetlands to luxury hotels, amusement parks to raceways to rocket launch pads, Florida has it all.
Perhaps it’s no surprise that Florida also presents employers with greater-than-average operational challenges and regulatory risks. Extreme temperatures, unpredictable weather conditions, and a large concentration of specialized, dangerous industries—including construction, agriculture, maritime, and more—all mean the serious potential for safety accidents and violations. Keep your workers safe and stay on the right side of the law with KPA’s EHS and workforce compliance resources.
Florida COVID-19 State Regulations
Below is a round-up of COVID-19 state regulations for employers navigating how to operate safely during the pandemic. If you believe there may be a discrepancy between a state and local order that affects you or your business, you should contact your local government and/or competent local counsel for further advice.
NEW 3/29/21: Liability Protection for Employers
Who: Most Florida businesses including corporations, joint ventures, hospitals, nursing homes, educational institutions, places of worship, government entities
When: Effective March 29, 2021, and retroactively applied for one year, excluding already filed cases
What: Governor Ron DeSantis signed SB 72 on March 29, 2021. Under this new legislation, businesses are protected from liability claims related to COVID-19 injuries or deaths. Anyone seeking a liability claim against a protected organization will need to provide a physician’s affidavit of merit about an injury and its connection to the organization’s acts or omissions.
In addition to the physician’s affidavit, the claimant has the burden of proof to demonstrate the organization did not make a “good faith effort” to comply with public health standards and/or guidance and acted with at least gross negligence.
What Should You Do?
- Determine if your business or organization is protected by the new law.
- Consult with your legal counsel and review your current policies and procedures to be sure they comply with federal, state, and local laws and public health standards to prevent COVID-19 infections and be prepared to demonstrate compliance if a claim comes up.
- Be sure your employees are aware of the policies and procedures in place to reduce COVID-19 infections by publishing policies and procedures and training.
Face Covering Mandate
On June 20, 2020, the Florida Department Of Health issued a public health advisory recommending all residents and visitors wear face coverings wherever social distancing isn’t possible to help prevent the spread of COVID-19. Some individuals may be exempt from wearing masks if they meet certain conditions. Everyone is also reminded to avoid gatherings of 50 people or more.
Employees and customers in personal care service businesses were already mandated to wear face coverings effective on May 11, 2020 on executive order 20-120.
Reopening in 2020
Under Phase I, restaurants and retail stores may reopen at 25% occupancy limits, provided that 6 feet distances between people are maintained. Other non-essential businesses can reopen as long as they adhere to CDC and OSHA guidelines for sanitation, hygiene, and social distancing orders.
Counties may impose harsher restrictions; Miami-Dade, Browder, and Palm Beach counties will not be following the recent state order.
Update 9/25/20: Executive Order 20-244 was issued and took effect on September 25, 2020, to start of Phase III reopening. The Executive Order includes information for restaurants (they may not operate at less than 50% indoor capacity) and if they are operating at less than 100% indoor capacity they must meet certain requirements listed in the Order (page 2). Individual fines and penalties are suspended.
Update 9/21/2020: Executive Order 2020-223 was issued for Broward and Miami-Dade Counties to move to Phase II of reopening.
Update 9/8/20: Emergency Order 2020-213 issued on September 4, 2020, to extend the state of emergency for 60 days.
Update 8/28/20: Florida’s Public Health Emergency was renewed on August 28, 2020.
Update 7/10/20: Emergency Order 2020-09 was issued to suspend restaurants and bars from selling alcohol for consumption on their premises, indoor capacity is limited to 50% of seating occupancy, employees should be screened for COVID-19.
Update 6/4/20: Executive Order No. 20-139 was issued announcing the state’s move to Phase II, excepting Miami-Dade, Browder, and Palm Beach Counties which will need to follow county orders. Everyone is encouraged to socially distance. Business guidance is provided for several industries including restaurants and bars, entertainment businesses may open at 50% capacity and provided that health and safety requirements are followed. Personal care services may operate as long as they had adhere to the Department of Health guidelines. Additional information can be found in the Safe. Smart. Step-by-Step. Plan for Florida’s Recovery presentation.
Update 5/28/20: Executive Order 20-130, expands Phase I to reopen youth activities.
Update: Under Executive Order 2020-120, beginning May 18, 2020, cosmetologists, barbershops, and salons may reopen as long as they adhere to safety measures.
Under Executive Order 2020-123, effective May 18, 2020, Florida has now fully entered Phase I of reopening. Restaurants may operate dine-in services at 50% capacity. Retail businesses, museums, and gyms/fitness centers may also operate at 50% capacity. All businesses must adhere to safety and social distancing requirements. Professional sports venues may reopen. A Full Phase 1 factsheet was released to easily reference what may now reopen. Governor DeSantis also released the state reopening plan: Safe. Smart. Step-by-Step. Plan for Florida’s Recovery.
Who: Florida employers and employees
When: April 3, 2020 through April 30, 2020 (Extended to May 4, 2020)
What: Governor Ron DeSantis issued an Executive Order to limit Florida residents’ interactions and movements outside their homes to only essential services or activities. This new order takes the place of any local orders.
The defined “essential services” list references the U.S. Department of Homeland Security’s Guidance on Essential Critical Infrastructure Workforce as well as the businesses and services named in a previous Florida Executive Order 20-89 and the Miami-Dade County Emergency Order 07-20. The overarching categories of essential infrastructure include:
- Health care operations
- Infrastructure, transportation, and marine services including services like utilities, marinas, fueling services, and telecommunications
- Retail including things like pharmacies and convenience stores, gas stations, grocery stores, hardware and building supplies
- Services like trash and recycling, mail, delivery and shipping, laundromats, building cleaning and maintenance, child care, auto repair, warehouses and distribution, funeral homes, retail that sells teleworking supplies, legal and accounting services
- Financial institutions
- Human services and shelters
- Construction and skilled trade
- Safety services like law enforcement, emergency response
- Pet care
- Automotive and vehicle operations including auto supply and repair stores, new and used automotive dealerships (social distancing must be used)
- Hardware stores and trades including exterminators, fumigators, pool care, landscaping, and contractors
- Educational institutions
- Senior Care
- Child care
Essential activities include attending religious events, participating in outdoor activities (as long as social distancing rules used), and caring for and helping pets, loved ones, and friends.
Additionally, the Governor issued an Executive Order that anyone who has traveled from Louisiana or New York tri-state area (Connecticut, New Jersey, and New York) quarantine themselves for 14 days from the time they enter Florida or the duration of the person’s presence in the State of Florida, whichever time period is shorter.
Another Executive Order from Governor DeSantis requires all vulnerable populations, specifically anyone with an underlying condition or who is over the age of 65, to stay at home.
- Determine if your business must close or whether you can send employees home to telework.
- When you’ve developed a plan to respond to new regulations, consult with your legal counsel to ensure it’s compliant with the state rules.
- Build a communication strategy to implement these changes in your workforce.
- There may be potential discrepancies between state and local orders. If you believe there may be a discrepancy affecting you or your business, you should contact your local government and/or competent local counsel for further advice.
Florida EHS Workplace Compliance Rules and Regulations
Universal Waste Rules Extend to Aerosol Cans
At the end of October 2020, Florida adopted a rule that adds aerosol cans to “universal waste” regulated under EPA 40 CFR 273.
Who: Businesses that use, generate, transport, treat, or dispose of aerosol cans, including small quantity handlers (SQH) of universal waste.
What are small quantity handlers? Businesses that accumulate less than 5,000 kg (approximately 11,000 lbs.) of all universal waste combined at their locations at any time.
What Do You Need to Do?
- Storage. Collect your aerosol cans in a container that is protected from heat and structurally sound. There shouldn’t be any leakage, spillage, or damage that could cause leakage. The container should be compatible with any of the contents from your aerosol cans.
- Cans that show any leakage must be kept in a separate closed container, packed with absorbents, or immediately punctured and drained in compliance with puncture rules.
- Label and date. Clearly label the container with one of the following: “Universal Waste – Aerosol Can(s),” “Waste Aerosol Can(s),” or “Used Aerosol Can(s).”
- Add an accumulation start date to the label. Small quantity handlers may only accumulate universal waste for no more than one year from the date it is generated.
- Transport recordkeeping. If your universal waste is shipped off-site and it meets the Department of Transportation’s hazardous waste definition, describe it on the shipping paper with the date, transporter, quantity, and materials description.
If You Puncture and Drain Your Aerosol Cans
Small quantity handlers meet several requirements when puncturing and draining universal waste aerosol cans:
- Use a commercial device designed to puncture the cans and contain any remaining contents and emissions.
- Keep updated written procedures about puncturing and draining aerosol cans.
- Employees must be trained on proper puncturing and draining.
- Puncturing a can must be done on a flat surface in a well-ventilated area that doesn’t pose a fire risk.
- Transfer residual contents to a tank or container that meets EPA standards. Determine if all of the contents are hazardous, and manage the waste in compliance with federal, state, or local regulations.
Florida HR and Workforce Compliance Rules and Regulations
Below is a round-up of new and changing state regulations for employers navigating workforce-related policies and procedures. Although we have provided some information and recommendations, you should contact your legal counsel for further advice.
January 1: Law Requiring Use of E-Verify Takes Effect
Who: Florida employers
When: Employers and Contractors have until January 1, 2021 to begin using E-Verify.
What: Senate Bill 664 makes it mandatory for employers to use E-Verify to determine employees’ work eligibility. E-Verify is a free, Internet-based system provided by the state that employers use to confirm that an employee is authorized to work in the United States. An employer input information from the employee’s Form I-9 and quickly obtains a result.
The requirement applies to public employers, their contractors and subcontractors, and private employers that have a contract with a public employer or that apply for taxpayer-funded incentives through the Florida Department of Economic Opportunity. Private employers that do not use the state’s E-Verify system must keep copies of the documents they use to complete Form I-9 for three years. Additionally, no public contract can be entered into without an E-Verify certificate.
Failure to comply with the law may result in fines and/or a business’s licenses being suspended or terminated.
- Register for E-Verify if you have not already done so.
- Train HR personnel in the use of E-Verify.
- Update your hiring and onboarding practices as needed to comply with the law.
- If you are a private employer and do not use E-Verify, keep copies of documents used to complete Form I-9 for three years.
- Consider periodically auditing your own employment-verification records to ensure that they are complete and correct.