Once again defying the science, Florida’s new Surgeon General, Dr. Joseph Ladapo, recently issued an “emergency” rule basically declaring that a single positive COVID test, no matter when it was taken, proves that one has immunity from COVID in perpetuity.
Per legislation recently passed by the Florida Legislature and signed by Gov. Ron DeSantis, this “natural immunity” will exempt employees from private employer vaccine mandates. This is only one of several loopholes to private employer mandates created via the new law, which also guts other public health measures designed to protect Floridians from COVID infection.
The new legislation was passed in a whirlwind three-day special legislative session convened by DeSantis in November, a mere two months from the start of the regular session in January, 2022. In my view (shared by others), this was yet another act in DeSantis’s base-pleasing COVID theater, there being no valid reason any of this couldn’t wait a couple of months, or was necessary in the first place.
In addition to providing exemptions to private employer vaccine mandates, which we’ll return to in a moment, legislation passed during the special session:
- Prohibits school districts from imposing mask or vaccine mandates for students and allows parents to take legal action against districts that don’t comply, as well as recover costs and attorneys’ fees. (This codifies into law DeSantis’s previously-issued executive order, and yet another Department of Health “emergency” rule, banning mandates.)
- Prohibits school districts from quarantining asymptomatic students or school employees (even if exposed to COVID) unless they have a positive SARS-CoV-2 test.
- Bans public employee vaccine mandates altogether (including K-12 schools, state-run healthcare facilities, and the state university system) and authorizes fines for failure to comply.
- Removes the state health officer’s authority to require vaccination during a public health emergency.
- Allocates $5 million to the state Attorney General to investigate complaints of violation of the new law and to fight federal vaccine mandates, with which this new legislation conflicts.
- Begins a process intended to transfer responsibility for worker safety from the federal OSHA to a state agency.
The Legislature gave the Florida Department of Health, headed by Great Barrington Declaration supporter and (former?) member of the fringe grifter group, Americas Frontline Doctors, Dr. Joseph Ladapo, the job of fleshing out some of the new law’s provisions via the enactment of rules, hence the Surgeon General’s decision that positive COVID tests “prove” immunity.
Before we move on, let me update you on Dr. Ladapo’s tenure as Florida’s Surgeon General, as he’s been in the news near-continuously since he was introduced to SBM readers in September, where his casting doubt on vaccines, cheerleading for hydroxychloroquine and ivermectin, spreading misinformation about masks, and dumpster-diving in VAERS was reported. Since then, Dr. Ladapo has packed quite a bit of controversy into less than four months in office. Dr. Ladapo
- got his Florida medical license in record time (two days) and then had a complaint filed against him with the medical board speedily dismissed;
- was awarded an annual salary of $437,000 (the highest ever paid), including tens of thousands of dollars from the University of Florida’s medical school, where he was also hired, and given tenure, in record time (for teaching and research) on the suggestion of a wealthy DeSantis donor, although the press reports that Dr. Ladapo has yet to show up for work there;
- continued to spread misinformation;
- been kicked out of a state Senator’s office for refusing her request to wear a mask due to what she described to him as a “serious condition”, later identified as breast cancer, for which she was undergoing treatment. He has yet to apologize, instead making up a lame excuse about not be able to “communicate” while wearing a mask; and
- starred in a PSA that barely mentioned vaccines, left out testing and mask wearing altogether, yet promoted treatments of questionable effectiveness (again).
With that, let’s turn to the exemptions to private employer vaccine mandates created by the legislature and Dr. Ladapo’s new rules implementing those exemptions.
Private Employer Vaccine Mandate Exemptions
Although DeSantis bloviated about banning all vaccine mandates, the new law, as applied to private employers, instead creates exemptions so easily met, and penalties so severe for violations, that it might as well be a ban. In fact, anyone wanting to evade a private employer vaccination mandate but unable to figure out how is probably unqualified for the workforce in the first place. Thus, DeSantis and the Legislature can claim that they are respecting a private employer’s right to make decisions about how to run his or her business while effectively gutting it.
Per the new law, if a private employer requires vaccination, an employee can opt out with:
- Medical reasons, including “pregnancy or anticipated pregnancy”, based on a physician’s, P.A.’s, or nurse practitioner’s “professional opinion”, made after examining the employee, that vaccination “is not in the best medical interest of the employee”.
- Sincerely held religious beliefs.
- “Competent medical evidence” that the employee has immunity, “documented by the results of a valid laboratory test”.
- Regular testing, at no cost to the employee.
- Unspecified “employer-provided protective equipment”.
The Department of Health was directed to enact “emergency rules” to implement these exemptions within 15 days and to create forms for claiming them. Per current Florida law, emergency rules can be adopted by an agency only when
an agency finds that an immediate danger to the public health, safety, or welfare requires emergency action, [in which case] the agency may adopt any rule necessitated by the immediate danger . . .
The law also requires that the agency state
the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances . . .
In this case, the Legislature obviated these prerequisites, without ever saying exactly what the emergency was or telling us what threat to the public it was supposedly alleviating, by simply declaring that “all conditions [for enacting an emergency rule] are deemed met”. It also tossed the usual requirement that emergency rules be in effect for only 90 days, allowing these very special emergency rules to remain in effect until the Department of Health could go through the regular rule-making process, which involves notice to the public, possibly a hearing, and can take months, even years, to complete (and probably won’t be completed anyway before this portion of the new law expires on its own terms on July 1, 2023).
With the usual protections for the public from government overreach conveniently short-circuited, Surgeon General Ladapo promptly issued the required emergency rules and forms.
For one, the Department of Health (presumably with a lot of “guidance” from DeSantis and Ladapo), relying on its well-known expertise in theology, decided that “based on religious reasons” included “sincerely held moral or ethical belief(s)”, an expansion that is questionable, in my view, based on the Legislature’s specifically using the term “religious reasons” in the new law. The rule also prohibits employers from inquiring “into the veracity of the employee’s religious beliefs”. In any event, the practical result of this exemption is that any employee can claim it, no questions asked.
Now, from theology we move on to the science component of the rules, or the lack thereof.
Per the Legislature’s direction to elucidate just what it meant by the term “anticipated pregnancy”, the Department decided that if the employee intends to become pregnant and is of child-bearing age, that’s an “anticipated pregnancy” and the employee’s representation must be accepted. The rule does not eliminate the requirement that a healthcare professional “document” this “medical reason” for a vaccination exemption (nor presumably could it be eliminated, based on the explicit wording of the law), leaving the employee in the curious position of having to get her doctor to sign off on her declaration that she intends to get pregnant, although the doctor, unlike the employer, is not prohibited from inquiring into the patient/employee’s statement of her intent.
More disturbingly, the Legislature, by including pregnancy and “anticipated pregnancy” as a “medical reason” for a vaccination exemption, is ignoring the advice of the CDC, the American College of Obstetricians and Gynecologists, and the Society for Maternal Fetal Medicine, among others, that COVID vaccination is safe for women who are pregnant or intend to become pregnant. Indeed, according to the CDC,
people who are pregnant or recently pregnant are more likely to get severely ill with COVID-19 compared with people who are not pregnant.
And in requiring a healthcare professional to “document an exemption based on . . . pregnancy or anticipated pregnancy”, the Legislature and the Department appear to be co-opting the medical community into endorsing its scheme. Per the exemption form devised by the Department, a physician, P.A., or nurse practitioner must declare that
It is my professional opinion . . . that COVID-19 vaccination is not in the best medical interest of the employee.
To claim an exemption based on “immunity”, the Legislature requires that
the employee must present to the employer an exemption statement demonstrating competent medical evidence that the employee has immunity to COVID-19, documented by the results of a laboratory test performed on the employee. The Department of Health shall adopt a standard for demonstrating competent medical evidence of such immunity.
Of course, the only problem is that there is no such thing as “competent medical evidence” demonstrating immunity via a lab test. Therefore, the Department adopted an “emergency rule” incorporating incompetent medical evidence to demonstrate immunity, that being an FDA-authorized or approved positive diagnostic test or a positive antibody test, even though, according to the CDC,
At this time, there is no FDA-authorized or approved test that providers or the public can use to reliably determine whether a person is protected from infection.
Diagnostic tests are designed to tell you if you have a current infection. Antibody tests look for antibodies in your immune system produced in response to the COVID-19 virus. Having a current infection does not mean you are immune from future infection. Having antibodies doesn’t mean they are sufficient to protect against an infection nor is there any agreed-upon level of antibodies that might confer protection or consensus about how long protection might last. And relying on a prior infection or the presence of antibodies to protect you sans vaccination subjects you to a much greater risk of getting reinfected than if you were vaccinated following a case of COVID. That is why the CDC (and pretty much everyone else) advises those who’ve had COVID to get vaccinated. Yet here we are.
The Department also devised an exemption form, which simply requires the employee to attach the lab test results, check a box indicating whether it is a PCR, antigen, or antibody test, and provide the test date.
Notably, there is no limitation on how old the test can be. So, if an employee had a positive diagnostic lab test in, say, January, 2020, the first time tests were made public in the U.S. (that is, almost two years ago), he can still use that result as “competent medical evidence” he has immunity.
Nor is there any limitation on how recent the test can be. Under the literal terms of the new law and the Department’s rule, an employee could submit a positive diagnostic test performed the same day, which means he should be quarantining, and meet the criteria for immunity.
In sum, in defiance of the expert consensus, the Legislature and the Dr. Ladapo have decided that (1) prior infection provides “natural immunity” from future infection in perpetuity, and (2) lab tests not designed to demonstrate “natural immunity” are a reliable way to determine this “natural immunity”.
I sense that even the Department itself is somewhat befuddled by its new rules.
When asked whether the department’s rule is making the case that natural immunity lasts forever, a department spokesperson referred a reporter back to the rule.
To ensure that private employers know the Legislature and Gov. DeSantis mean business, heavy fines can be imposed for terminating an employee for refusing vaccination: up to $10,000 for employers with fewer than 100 employees and up to $50,000 for those with greater than 100 employees. Employees can file complaints, which the law protects from public view, against their employers, triggering a requirement that the Attorney General investigate and, if she finds it appropriate, impose fines, giving the whole thing a star chamber quality.
All of this has left Florida employers in a “tough spot” according to one employment law expert, who notes that employers must now try to figure out how to comply with Florida’s new law, while at the same time comply with conflicting federal vaccine mandates per OSHA, the Centers for Medicare & Medicaid Services (covering healthcare employees), and federal contractor rules.
Meanwhile, Florida’s COVID infection rate continues to climb, again landing our state case rate in the U.S.’s top 10.
