This section substantially amends section 381.00316, Florida Statutes (the “vaccine passport ban” included in SB 2006 from 2021). The stated purpose of this section is to ensure that “Floridians be free from mandated facial coverings, mandates of any kind relating to vaccines as provided in this section, and discrimination based on such vaccination status.” This section expands on the protection provided to those who choose not to take a COVID-19 vaccine or an MRNA vaccine and applies to both business entities (defined broadly to include any business operating in Florida, charitable organizations and not-for-profits included) and governmental entities (excluding educational institutions).

Both entities are prohibited from:

• Requiring documentation certifying COVID-19 or MRNA vaccination
• Requiring documentation certifying post-infection recovery from COVID-19
• Requiring a COVID-19 test

to gain access, entry, or service from the business or governmental entity, or as a condition of contracting, hiring, promotion or continued employment with the entity.

Interestingly, this section provides that for matters relating to vaccines other than for COVID-19 and MRNA vaccines, business entities and governmental entities “shall provide for exemptions and reasonable accommodations for religious and medical reasons in accordance with federal law.” Those few businesses that require certain non-COVID vaccines for their employees will need to evaluate requests for medical and religious exemptions to ensure compliance with this provision.

This section also prohibits hospitals and ambulatory surgical centers from discriminating in providing health care to a patient based solely on that patient’s vaccination status with a COVID-19 vaccine.
This section further provides that business and governmental entities may not:

• Require a person to wear a facial covering
• Deny access to, entry upon, service from, or admission to the entity based on the refusal to wear a facial covering
• Otherwise discriminate against the individual for refusal to wear a facial covering

This provision on face masks DOES NOT apply to physicians, hospitals or other health care providers and practitioners – facial covering requirements for these individuals and entities are set forth in Section 5. The rest of this section, however, does apply to physicians, hospitals and other health care providers/entities as the exemption provided in the original statute has been deleted.

Violations of Section 1 may result in an administrative fine not to exceed $5,000 for each individual and separate violation.

This section imposes most of the requirements of Section 1 on educational institutions, defined as public or private elementary, middle, junior high, or secondary schools, preschools, career centers, or postsecondary schools. The same prohibition on requiring facial coverings is included. Medical schools are not specifically excluded from this prohibition, but health care providers and health care practitioners are, provided they are in compliance with the requirements in Section 5. Educational institutions, including medical schools, may require use of a face mask, face shield or other facial covering when such use is required safety equipment in accordance with standards adopted by the Department of Health. Violations of Section 2 can also result in an administrative fine not to exceed $5,000 for each individual and separate violation.

This section prohibits governmental entities and educational institutions from adopting, implementing, or enforcing “an international health organization’s public health policies or guidelines unless authorized to do so under state law, rule or executive order issued by the Governor.”

In response to a court case involving the Mayo Clinic’s refusal to administer ivermectin to a patient in a medically induced coma despite the patient’s family’s insistence,² the Legislature added this section to prohibit hospitals from interfering with a patient’s right to choose COVID-19 treatment alternatives. This section, however, wouldn’t necessarily change the result in the Mayo case as the new law gives the patient the right to an alternative treatment recommended by a health care practitioner with privileges at the hospital. In the Mayo case, the patient’s family sought care from a physician who did not have privileges at Mayo.

In addition to having privileges at the hospital where the alternative treatment is to be provided, the health care practitioner must obtain informed consent from the patient as required by Section 6.

Any hospital that prevents a health care practitioner (with privileges at the hospital) from exercising their sound judgment regarding the administration of a COVID-19 treatment alternative is subject to administrative discipline.

² Pisano v. Mayo Clinic Florida, Fla. 1st DCA, January 27, 2022. The DCA ruled in Mayo’s favor, stating that the Clinic and its physicians cannot be legally compelled to administer a treatment they do not wish to provide.

Section 1 sets forth the general rule that businesses may not require patrons or employees to wear facial coverings, but exempts health care providers, practitioners, and facilities from this prohibition. Rather than imposing the blanket prohibition on requiring facial coverings applicable to businesses, Section 5 sets up the following system for the use of facial coverings in health care settings:

• The Agency for Health Care Administration (AHCA) and the Department of Health (DOH) are required to jointly develop standards for the appropriate use of facial coverings for infection control in health care settings by July 1, 2023.
• AHCA and DOH shall adopt emergency rules for these standards.
• AHCA and DOH shall publish these standards on their respective websites and provide a link for reporting violations.

AHCA and DOH have complied with these requirements.

• By Aug. 1, 2023, health care practitioners and health care providers are required to establish facial covering policies and procedures IF they require any individual to wear a facial covering for any reason.
• Such policies and procedures must comply with the emergency rules adopted by AHCA and DOH as applicable.
• These policies and procedures must be accessible from the home page of the practitioner or provider’s website or must be conspicuously displayed in the lobby of the health care service setting.
• Health care providers and practitioners may not require any person to wear a facial covering unless the requirement complies with AHCA/DOH rules and the provider/practitioner’s own policies and procedures.
• Violation of this section may result in administrative disciplinary action.

As noted above, both AHCA and DOH have adopted emergency rules on the Standards for the Appropriate Use of Facial Covering for Infection Control. DOH rule 64DER23-6 differentiates between patients, visitors, and employees as to the rules applicable for facial covering requirements.

For patients:

• Health care providers/practitioners may require patients to wear a facial covering only when the patient is in a common area and is exhibiting signs or symptoms of an infectious disease that can be spread through droplet or airborne transmission or has been diagnosed with such a disease.
• If patients are required to wear a facial covering under the circumstances above, there must be a provision in the health care provider/practitioner’s policy allowing the patient to opt out of wearing the facial covering.

Visitors to the health care provider/practitioner may be required to wear a facial covering only when the visitor is:

• Exhibiting signs or symptoms or has a diagnosed infectious disease that can be spread through droplet or airborne transmission.
• In sterile areas or an area where sterile procedures are being performed.
• In an in-patient or clinical room with a patient who is exhibiting signs or symptoms of or has a diagnosed infectious disease that can be spread through droplet or airborne transmission.
• Visiting a patient with a confirmed condition of the immune system that increases the risk of transmission of an infection from asymptomatic visitors when the patient’s treating physician determines the use of facial coverings are necessary for the patient’s safety.
• Visitors must be allowed to opt out of wearing a facial covering “if an alternative method of infection control or infectious disease prevention is available.”

For employees there are no set criteria for when a facial covering can be required. Presumably, health care providers/practitioners may require employees to wear facial coverings in any setting at any time. If facial coverings are required, employees must be allowed to opt out unless the employee is:

• Conducting sterile procedures.
• Working in a sterile area.
• Working with a patient with a confirmed condition of the immune system that increases the risk of transmission of an infection from asymptomatic employees when the patient’s treating physician determines the use of facial coverings are necessary for the patient’s safety.
• Working with a patient on droplet or airborne isolation.
• Engaging in non-clinical potentially hazardous activities that require facial coverings to prevent physical injury or harm in accordance with industry standards (OSHA, for example).

The opt-out provisions in the rule are a bit vague for patients and visitors. In comparison, the standards for employees are quite clear.

For patients, the opt-out policy must be in accordance with Florida’s Patient Bill of Rights and Responsibilities.³ The DOH rule, however, does not provide any guidance on how, or which specific provision of the Patient Bill or Rights the policy must conform to. The Patient Bill of Rights does not contain any provision that specifically mentions the wearing of facial coverings, and a full reading of the statute fails to reveal any provision that would clearly apply to the use of facial coverings. The FMA will ask DOH for clarification and will share any information we receive.

For visitors, the opt-out requirements allow health care providers/practitioners to insist on the wearing of facial coverings if an alternative method of infection control or disease prevention is not available. As DOH does not define or list the acceptable alternative methods of infection control or disease prevention, that determination is up to the health care provider/practitioner.

The emergency rule adopted by AHCA (59 AER23-2, Standards for the Appropriate Use of Facial Coverings for Infection Control) is identical to the DOH rule.

This section imposes the following requirements on health care practitioners who treat patients diagnosed with COVID-19:

• The informed consent of the patient must be obtained prior to prescribing any medication.
• An explanation of the alternative medications for the treatment of COVID-19 and their relative advantages, disadvantages and risks must be provided as part of the informed consent process.
• Any medications currently authorized or approved by the United States Food and Drug Administration for the treatment of COVID-19 must be included in the alternative medications discussed.
• Practitioners are to use their best clinical judgment to identify other alternative medications that could reasonably be expected to benefit the patient, taking into consideration the physical state of the patient and the patient’s level of comprehension.
• Documentation in the patient’s medical record of compliance with this section is required.

An obvious question arises from this section as to what alternative medications the practitioner must discuss with the patient apart from those specifically approved by the FDA for the treatment of COVID-19. For example, does this require a practitioner to discuss the use of ivermectin? That would appear to depend solely on the “best clinical judgment” of the practitioner.

This appears to lead to the odd result that a practitioner who believes that ivermectin is a beneficial alternative medication must discuss this medication with the patient. On the other hand, practitioners who do not believe that ivermectin can reasonably be expected to benefit anyone diagnosed with COVID-19 do not have to discuss this medication with the patient.