Bill Text: FL S0252 | 2023 | Regular Session | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Protection from Discrimination Based on Health Care Choices

Spectrum: Slight Partisan Bill (Republican 2-1)

Status: (Passed) 2023-05-12 - Chapter No. 2023-43, companion bill(s) passed, see CS/CS/SB 238 (Ch. 2023-42) [S0252 Detail]

Download: Florida-2023-S0252-Introduced.html
       Florida Senate - 2023                                     SB 252
       
       
        
       By Senator Burton
       
       
       
       
       
       12-01819B-23                                           2023252__
    1                        A bill to be entitled                      
    2         An act relating to protection from discrimination
    3         based on health care choices; repealing s. 112.0441,
    4         F.S., relating to prohibiting public employers from
    5         imposing COVID-19 vaccination mandates; amending s.
    6         381.00316, F.S.; providing legislative intent and
    7         findings; defining terms; prohibiting business
    8         entities and governmental entities from requiring
    9         COVID-19 testing to gain access to, entry upon, or
   10         service from such entities; prohibiting such entities
   11         from requiring persons to provide certain
   12         documentation or requiring COVID-19 testing as a
   13         condition of contracting, hiring, promotion, or
   14         continued employment; prohibiting business and
   15         governmental entities from refusing to hire persons,
   16         discharging persons, depriving or attempting to
   17         deprive persons of employment opportunities, adversely
   18         affecting persons with respect to employment, or
   19         otherwise discriminating against any person based on
   20         knowledge or belief of a person’s COVID-19 vaccination
   21         or postinfection recovery status or failure to take a
   22         COVID-19 test; prohibiting such entities from
   23         requiring persons to wear face coverings in order to
   24         gain access to, entry upon, services from, or
   25         admission to such entities or from otherwise
   26         discriminating against persons based on their refusal
   27         to wear a facial covering; providing exceptions;
   28         providing administrative penalties; authorizing the
   29         Department of Legal Affairs to take specified actions
   30         for purposes of conducting investigations or
   31         proceedings; requiring collected fines to be deposited
   32         in the General Revenue Fund; providing construction;
   33         providing that certain terminated employees are
   34         eligible for reemployment assistance; repealing s.
   35         381.00317, F.S., relating to prohibiting private
   36         employers from imposing COVID-19 vaccination mandates;
   37         amending s. 381.00319, F.S.; revising definitions;
   38         revising provisions related to the prohibition on
   39         COVID-19-related mandates by educational institutions;
   40         prohibiting educational institutions from requiring a
   41         person to provide certain documentation or requiring a
   42         COVID-19 test to gain admission to, access to, entry
   43         upon, or service from such institutions or otherwise
   44         discriminating against any person based on such
   45         person’s COVID-19 vaccination or postinfection
   46         recovery status or failure to take a COVID-19 test;
   47         prohibiting educational institutions from requiring
   48         persons to wear face coverings; from denying a person
   49         access to, entry upon, services from, or admission to
   50         such institutions; or from otherwise discriminating
   51         against persons based on their refusal to wear a
   52         facial covering; providing exceptions; providing
   53         administrative penalties; authorizing the Department
   54         of Health to take specified actions for purposes of
   55         conducting investigations or proceedings; requiring
   56         collected fines to be deposited in the General Revenue
   57         Fund; providing construction; creating s. 395.1057,
   58         F.S.; prohibiting hospitals from interfering with
   59         patients’ right to choose COVID-19 treatment
   60         alternatives if certain conditions are met; providing
   61         for disciplinary action; creating s. 408.833, F.S.;
   62         defining terms; requiring the Agency for Health Care
   63         Administration and the Department of Health to jointly
   64         develop standards for the appropriate use of facial
   65         coverings in health care settings by a specified date;
   66         requiring that such standards be posted on the
   67         agency’s and department’s respective websites in a
   68         specified manner; requiring their websites to include
   69         a link for reporting related complaints; requiring the
   70         agency and department to adopt rules; providing for
   71         emergency rulemaking; requiring health care providers
   72         and certain health care practitioners to establish
   73         facial covering policies and procedures by a specified
   74         date; providing requirements for such policies and
   75         procedures; requiring health care providers and health
   76         care practitioners to submit their facial covering
   77         policies to the agency or department, as applicable,
   78         for approval; requiring health care providers and
   79         health care practitioners to make such policies and
   80         procedures available to the agency or department, as
   81         applicable, upon request and easily accessible on
   82         their respective websites; creating s. 456.62, F.S.;
   83         requiring health care practitioners treating patients
   84         diagnosed with COVID-19 to obtain patients’ informed
   85         consent before prescribing any medications for
   86         treatment of COVID-19; providing a requirement for
   87         obtaining such informed consent; requiring health care
   88         practitioners to include certain information and use
   89         their best clinical judgment when making certain
   90         determinations related to alternative medications for
   91         treatment of COVID-19; requiring health care
   92         practitioners to indicate certain information in their
   93         patients’ medical records; providing construction;
   94         amending s. 465.0266, F.S.; exempting certain
   95         pharmacists from disciplinary action under certain
   96         circumstances; amending s. 1002.20, F.S.; conforming
   97         provisions to changes made by the act; revising the
   98         date of the future repeal of certain provisions;
   99         providing an effective date.
  100          
  101  Be It Enacted by the Legislature of the State of Florida:
  102  
  103         Section 1. Section 112.0441, Florida Statutes, is repealed.
  104         Section 2. Section 381.00316, Florida Statutes, is amended
  105  to read:
  106         381.00316 Discrimination based on COVID-19 vaccination
  107  status; prohibition vaccine documentation.—
  108         (1)(a)It is the intent of the Legislature that Floridians
  109  be free from mandated facial coverings, COVID-19 vaccination
  110  mandates of any kind, and discrimination based on COVID-19
  111  vaccination status, and receive adequate information regarding
  112  treatment alternatives for COVID-19.
  113         (b)The Legislature finds and declares that society is
  114  harmed by discrimination based on COVID-19 vaccination status
  115  because healthy persons are deprived of participating in society
  116  and accessing employment opportunities. The Legislature further
  117  finds and declares that remedies to prevent such discrimination
  118  are in the best interest of this state.
  119         (2)As used in this section, the term:
  120         (a)“Business entity” has the same meaning as in s. 606.03.
  121  The term also includes a charitable organization as defined in
  122  s. 496.404, a corporation not for profit as defined in s.
  123  617.01401, a private club, or any other business operating in
  124  this state.
  125         (b)“COVID-19” means the novel coronavirus identified as
  126  SARS-CoV-2; any disease caused by SARS-CoV-2, its viral
  127  fragments, or a virus mutating therefrom; and all conditions
  128  associated with the disease which are caused by SARS-CoV-2, its
  129  viral fragments, or a virus mutating therefrom.
  130         (c)“Department” means the Department of Legal Affairs.
  131         (d)“Governmental entity” means the state or any political
  132  subdivision thereof, including the executive, legislative, and
  133  judicial branches of government; the independent establishments
  134  of the state, counties, municipalities, districts, authorities,
  135  boards, or commissions; or any agencies that are subject to
  136  chapter 286. The term does not include an educational
  137  institution as defined in s. 381.00319.
  138         (3)(1) A business entity, as defined in s. 768.38 to
  139  include any business operating in this state, may not require
  140  any person patrons or customers to provide any documentation
  141  certifying COVID-19 vaccination or postinfection recovery or
  142  require a COVID-19 test to gain access to, entry upon, or
  143  service from the business operations in this state or as a
  144  condition of contracting, hiring, promotion, or continued
  145  employment from the business entity. A business entity may not
  146  refuse to hire, or discharge, a person; deprive or attempt to
  147  deprive a person of employment opportunities; adversely affect a
  148  person’s status as an employee or as an applicant for
  149  employment; or otherwise discriminate against a person based on
  150  knowledge or belief of the person’s COVID-19 vaccination or
  151  postinfection recovery status or a person’s failure to take a
  152  COVID-19 test. This subsection does not otherwise restrict
  153  businesses from instituting screening protocols consistent with
  154  authoritative or controlling government-issued guidance to
  155  protect public health.
  156         (4)(2) A governmental entity as defined in s. 768.38 may
  157  not require any person persons to provide any documentation
  158  certifying COVID-19 vaccination or postinfection recovery or
  159  require a COVID-19 test to gain access to, entry upon, or
  160  service from the governmental entity’s operations in this state
  161  or as a condition of contracting, hiring, promotion, or
  162  continued employment from the governmental entity. A
  163  governmental entity may not refuse to hire, or discharge, a
  164  person; deprive or attempt to deprive a person of employment
  165  opportunities; adversely affect a person’s status as an
  166  employee; or otherwise discriminate against a person based on
  167  the knowledge or belief of the person’s COVID-19 vaccination or
  168  postinfection recovery status or a person’s failure to take a
  169  COVID-19 test.
  170         (5)A business entity or governmental entity may not
  171  require a person to wear a face mask, a face shield, or any
  172  other facial covering that covers the mouth and nose. A business
  173  entity or governmental entity may not deny any person access to,
  174  entry upon, service from, or admission to such entity or
  175  otherwise discriminate against a person based on such person’s
  176  refusal to wear a face mask, a face shield, or any other facial
  177  covering that covers the mouth and nose. This subsection does
  178  not apply to:
  179         (a)A health care provider or health care practitioner as
  180  those terms are defined in s. 408.833, provided such health care
  181  provider or health care practitioner is in compliance with that
  182  section.
  183         (b)A business entity or governmental entity when a face
  184  mask, a face shield, or any other facial covering that covers
  185  the mouth and nose is required safety equipment consistent with
  186  occupational or laboratory safety requirements This subsection
  187  does not otherwise restrict governmental entities from
  188  instituting screening protocols consistent with authoritative or
  189  controlling government-issued guidance to protect public health.
  190         (3)An educational institution as defined in s. 768.38 may
  191  not require students or residents to provide any documentation
  192  certifying COVID-19 vaccination or postinfection recovery for
  193  attendance or enrollment, or to gain access to, entry upon, or
  194  service from such educational institution in this state. This
  195  subsection does not otherwise restrict educational institutions
  196  from instituting screening protocols consistent with
  197  authoritative or controlling government-issued guidance to
  198  protect public health.
  199         (6)(a)(4) The department may impose an administrative a
  200  fine not to exceed $5,000 for each individual and separate per
  201  violation of this section.
  202         (b)For purposes of conducting an investigation or a
  203  proceeding, the department may administer oaths, take
  204  depositions, make inspections when authorized by law, issue
  205  subpoenas supported by affidavit, serve subpoenas and other
  206  process, and compel the attendance of witnesses and the
  207  production of books, papers, documents, and other evidence.
  208  Challenges to and enforcement of subpoenas or orders shall be in
  209  accordance with s. 120.569.
  210         (c)Fines collected pursuant to this section must be
  211  deposited into the General Revenue Fund.
  212         (7)This section does not limit the right of the person
  213  aggrieved by a violation of this section to recover damages or
  214  other relief under any other applicable law.
  215         (8)If a governmental entity fails to comply with
  216  subsection (4), an employee terminated based on such
  217  noncompliance may be eligible for reemployment assistance under
  218  chapter 443 in addition to any other remedy available to the
  219  employee for a violation of this section.
  220         (5)This section does not apply to a health care provider
  221  as defined in s. 768.38; a service provider licensed or
  222  certified under s. 393.17, part III of chapter 401, or part IV
  223  of chapter 468; or a provider with an active health care clinic
  224  exemption under s. 400.9935.
  225         (9)(6) The department may adopt rules pursuant to ss.
  226  120.536 and 120.54 to implement this section.
  227         Section 3. Section 381.00317, Florida Statutes, is
  228  repealed.
  229         Section 4. Section 381.00319, Florida Statutes, is amended
  230  to read:
  231         381.00319 Prohibition on mask mandates and COVID-19
  232  vaccination and testing mandates for educational institutions
  233  students.—
  234         (1) For purposes of this section, the term:
  235         (a) “COVID-19” means the novel coronavirus identified as
  236  SARS-CoV-2; any disease caused by SARS-CoV-2, its viral
  237  fragments, or a virus mutating therefrom; and all conditions
  238  associated with the disease which are caused by SARS-CoV-2, its
  239  viral fragments, or a virus mutating therefrom has the same
  240  meaning as in s. 381.00317(1).
  241         (b) “Educational institution” means a public or private
  242  school, including a preschool, elementary school, middle school,
  243  junior high school, secondary school, career center, or
  244  postsecondary school has the same meaning as in s. 112.0441(1).
  245         (c)“Parent” has the same meaning as in s. 1000.21(5).
  246         (2)(a)Notwithstanding any other law to the contrary, An
  247  educational institution or elected or appointed local official
  248  may not impose a COVID-19 vaccination mandate on for any person
  249  student.
  250         (b)An educational institution may not require any person
  251  to provide any documentation certifying COVID-19 vaccination or
  252  postinfection recovery or require a COVID-19 test to gain
  253  admission or access to, entry upon, or service from the
  254  educational institution in this state. An educational
  255  institution may not otherwise discriminate against any person
  256  based on such person’s COVID-19 vaccination or postinfection
  257  recovery status or such person’s failure to take a COVID-19
  258  test.
  259         (3)An educational institution may not require a person to
  260  wear a face mask, a face shield, or any other facial covering
  261  that covers the mouth and nose. An educational institution may
  262  not deny any person access to, entry upon, service from, or
  263  admission to such educational institution or otherwise
  264  discriminate against a person based on such person’s refusal to
  265  wear a face mask, a face shield, or any other facial covering
  266  that covers the mouth and nose. This subsection does not apply
  267  to:
  268         (a)A health care provider or health care practitioner as
  269  those terms are defined in s. 408.833, provided such health care
  270  provider or health care practitioner is in compliance with that
  271  section.
  272         (b)An educational institution when a face mask, a face
  273  shield, or any other facial covering that covers the mouth and
  274  nose is used as required safety equipment in a course of study
  275  consistent with occupational or laboratory safety requirements.
  276         (4)(a)The Department of Health may impose an
  277  administrative fine not to exceed $5,000 for each individual and
  278  separate violation of this section.
  279         (b)For the purpose of conducting an investigation or a
  280  proceeding, the Department of Health may administer oaths, take
  281  depositions, make inspections when authorized by law, issue
  282  subpoenas supported by affidavit, serve subpoenas and other
  283  process, and compel the attendance of witnesses and the
  284  production of books, papers, documents, and other evidence.
  285  Challenges to and enforcement of subpoenas or orders shall be in
  286  accordance with s. 120.569.
  287         (c)Fines collected pursuant to this section must be
  288  deposited into the General Revenue Fund.
  289         (5)This section does not limit the right of the person
  290  aggrieved by a violation of this section to recover damages or
  291  other relief under any other applicable law.
  292         (3)A parent of a student, a student who is an emancipated
  293  minor, or a student who is 18 years of age or older may bring an
  294  action against the educational institution to obtain a
  295  declaratory judgment that an act or practice violates this
  296  section and to seek injunctive relief. A prevailing parent or
  297  student, as applicable, must be awarded reasonable attorney fees
  298  and court costs.
  299         (4)This section expires June 1, 2023.
  300         Section 5. Section 395.1057, Florida Statutes, is created
  301  to read:
  302         395.1057Patients’ right to choose COVID-19 treatment
  303  alternatives.—A hospital may not interfere with a patient’s
  304  right to choose COVID-19 treatment alternatives as recommended
  305  by a health care practitioner with privileges at the hospital if
  306  the health care practitioner has obtained informed consent from
  307  the patient in accordance with s. 456.62. Any hospital that
  308  violates this section by preventing a health care practitioner
  309  from exercising his or her sound judgment is subject to agency
  310  disciplinary action under s. 395.1065(2).
  311         Section 6. Section 408.833, Florida Statutes, is created to
  312  read:
  313         408.833Facial covering requirements for health care
  314  facilities and health care providers.—
  315         (1)As used in this section, the term:
  316         (a) “Department” means the Department of Health.
  317         (b) “Facial covering” means a cloth or surgical face mask,
  318  a face shield, or any other facial covering that covers the
  319  mouth and nose.
  320         (c)“Health care practitioner” has the same meaning as in
  321  s. 456.001.
  322         (d)“Health care provider” means a health care provider as
  323  defined in s. 408.07; a service provider licensed or certified
  324  under s. 393.17, part III of chapter 401, or part IV of chapter
  325  468; or a provider with an active health care clinic exemption
  326  under s. 400.9935.
  327         (e)“Office” means an office maintained by a health care
  328  practitioner for the practice of the individual’s profession, as
  329  defined in his or her practice act.
  330         (2)By August 1, 2023, the agency and the department shall
  331  jointly develop standards for the appropriate use of facial
  332  coverings for infection control in health care settings.
  333         (a) The standards must be posted on the agency and
  334  department’s respective websites and in a manner easily
  335  accessible from the homepage of their respective websites. Each
  336  website must also include an easily accessible link to report
  337  complaints for violations of the standards.
  338         (b)The agency and department shall adopt rules to
  339  implement this subsection and may use emergency rulemaking
  340  procedures established in s. 120.54(4) to adopt such rules. Such
  341  emergency rules are exempt from s. 120.54(4)(c) and shall remain
  342  in effect until replaced by rules adopted under the nonemergency
  343  rulemaking procedures established in chapter 120.
  344         (3)(a)By September 1, 2023, each health care provider and
  345  each health care practitioner who operates or manages an office
  346  shall establish facial covering policies and procedures for
  347  their respective health care settings, consistent with the
  348  standards adopted by the agency and the department. The policies
  349  and procedures:
  350         1.Must detail the clinical circumstances under which
  351  facial coverings are required to be worn by employees and
  352  contractors; and
  353         2.May not require patients, visitors, or guests to wear
  354  facial coverings unless it is clinically necessitated in order
  355  to stop the transmission of a confirmed or suspected infectious
  356  disease, in accordance with the standards adopted by the agency
  357  and department.
  358         (b)Health care providers and health care practitioners
  359  shall submit their facial covering policies and procedures to
  360  the agency or department, as applicable, for approval when
  361  applying for initial licensure, license renewal, or change of
  362  ownership. Health care providers and health care practitioners
  363  must make such policies and procedures available to the agency
  364  or department, as applicable, for review upon request, and
  365  easily accessible to the public on the homepages of their
  366  respective websites.
  367         Section 7. Section 456.62, Florida Statutes, is created to
  368  read:
  369         456.62Communication of COVID-19 treatment alternatives.—
  370         (1)A health care practitioner treating a patient diagnosed
  371  with COVID-19 shall obtain the informed consent of the patient
  372  or the patient’s legal representative before prescribing any
  373  medication for the treatment of COVID-19.
  374         (2)To obtain informed consent, the health care
  375  practitioner must provide an explanation of alternative
  376  medications for the treatment of COVID-19 and the relative
  377  advantages, disadvantages, and risks associated with such
  378  alternative medications to the extent necessary to allow the
  379  patient or the patient’s legal representative to make a prudent
  380  decision regarding treatment.
  381         (3)In determining which alternative medications to present
  382  to a patient for purposes of obtaining informed consent, the
  383  health care practitioner must include any medications currently
  384  authorized or approved by the United States Food and Drug
  385  Administration for the treatment of COVID-19 and use his or her
  386  best clinical judgment to identify any alternative medications
  387  that could be reasonably expected to benefit the patient.
  388         (4)In providing such information regarding alternative
  389  medications, the health care practitioner shall take into
  390  consideration the physical state of the patient and the
  391  patient’s ability to understand the information.
  392         (5)A health care practitioner treating a patient diagnosed
  393  with COVID-19 shall indicate on such patient’s medical record
  394  the health care practitioner’s compliance or noncompliance with
  395  this section.
  396         (6)This section does not supersede any other provision of
  397  law regarding informed consent.
  398         Section 8. Section 465.0266, Florida Statutes, is amended
  399  to read:
  400         465.0266 Common database.—Nothing contained in this chapter
  401  shall be construed to prohibit the dispensing by a pharmacist
  402  licensed in this state or another state of a prescription
  403  contained in a common database, and such dispensing shall not
  404  constitute a transfer as defined in s. 465.026(1)-(6), provided
  405  that the following conditions are met:
  406         (1) All pharmacies involved in the transactions pursuant to
  407  which the prescription is dispensed are under common ownership
  408  and utilize a common database.
  409         (2) All pharmacies involved in the transactions pursuant to
  410  which the prescription is dispensed and all pharmacists engaging
  411  in dispensing functions are properly licensed, permitted, or
  412  registered in this state or another state.
  413         (3) The common database maintains a record of all
  414  pharmacists involved in the process of dispensing a
  415  prescription.
  416         (4) The owner of the common database maintains a policy and
  417  procedures manual that governs its participating pharmacies,
  418  pharmacists, and pharmacy employees and that is available to the
  419  board or its agent upon request. The policy and procedures
  420  manual shall include the following information:
  421         (a) A best practices model detailing how each pharmacy and
  422  each pharmacist accessing the common database will comply with
  423  applicable federal and state laws, rules, and regulations.
  424         (b) The procedure for maintaining appropriate records for
  425  regulatory oversight for tracking a prescription during each
  426  stage of the filling and dispensing process, identifying the
  427  pharmacists involved in filling and dispensing the prescription
  428  and counseling the patient, and responding to any requests for
  429  information made by the board under s. 465.0156.
  430         (c) The policy and procedure for providing adequate
  431  security to protect the confidentiality and integrity of patient
  432  information.
  433         (d) A quality assurance program designed to objectively and
  434  systematically monitor, evaluate, and improve the quality and
  435  appropriateness of patient care through the use of the common
  436  database.
  437  
  438  Any pharmacist dispensing a prescription has at all times the
  439  right and obligation to exercise his or her independent
  440  professional judgment. Any pharmacist properly dispensing an
  441  alternative medication prescribed for the treatment of COVID-19
  442  is not subject to disciplinary action by the board or the
  443  department based solely on such dispensing. Notwithstanding
  444  other provisions in this section, a no pharmacist licensed in
  445  this state participating in the dispensing of a prescription
  446  pursuant to this section is not shall be responsible for the
  447  acts and omissions of another person participating in the
  448  dispensing process provided such person is not under the direct
  449  supervision and control of the pharmacist licensed in this
  450  state.
  451         Section 9. Paragraph (n) of subsection (3) of section
  452  1002.20, Florida Statutes, is amended to read:
  453         1002.20 K-12 student and parent rights.—Parents of public
  454  school students must receive accurate and timely information
  455  regarding their child’s academic progress and must be informed
  456  of ways they can help their child to succeed in school. K-12
  457  students and their parents are afforded numerous statutory
  458  rights including, but not limited to, the following:
  459         (3) HEALTH ISSUES.—
  460         (n) Face covering mandates and quarantine mandates in
  461  response to COVID-19.—
  462         1. A district school board, a district school
  463  superintendent, an elected or appointed local official, or any
  464  district school board employee may not:
  465         a. Require a student to wear a face mask, a face shield, or
  466  any other facial covering that fits over the mouth or nose.
  467  However, a parent, at the parent’s sole discretion, may allow
  468  his or her child to wear a face mask, a face shield, or any
  469  other facial covering that fits over the mouth or nose. This
  470  prohibition does not apply to safety equipment required as part
  471  of a course of study consistent with occupational or laboratory
  472  safety requirements.
  473         b. Prohibit a student from attending school or school
  474  sponsored activities, prohibit a student from being on school
  475  property, or subject a student to restrictions or disparate
  476  treatment, based on an exposure to COVID-19, so long as the
  477  student remains asymptomatic and has not received a positive
  478  test for COVID-19 as defined in s. 381.00319(1) s. 381.00317(1).
  479  
  480  A parent of a student, a student who is an emancipated minor, or
  481  a student who is 18 years of age or older may bring an action
  482  against the school district to obtain a declaratory judgment
  483  that an act or practice violates this subparagraph and to seek
  484  injunctive relief. A prevailing parent or student, as
  485  applicable, must be awarded reasonable attorney fees and court
  486  costs.
  487         2. A district school board, a district school
  488  superintendent, an elected or appointed local official, or any
  489  school district employee may not prohibit an employee from
  490  returning to work or subject an employee to restrictions or
  491  disparate treatment based on an exposure to COVID-19 so long as
  492  the employee remains asymptomatic and has not received a
  493  positive test for COVID-19 as defined in s. 381.00319(1) s.
  494  381.00317(1).
  495         3. This paragraph expires July June 1, 2023.
  496         Section 10. This act shall take effect July 1, 2023.

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