New Florida Legislation—What Employers Need to Know

With the 2023 Florida Legislative Session’s adjournment earlier this month, a number of recently enacted laws are making headlines. Employers should pay special attention to two specific pieces of legislation, Senate Bill 1718 and Senate Bill 252, expanding the scope of employers subject to E-Verify requirements and further limiting employers’ ability to enforce certain COVID-19 protocols, respectively.

Senate Bill 1718 – Work Authorization Verification Requirements

On Wednesday, May 10, Governor DeSantis signed Senate Bill 1718 into law. The law aims to broadly crackdown on illegal immigration — from requiring hospitals to obtain and track patients’ immigration status to largely criminalizing the transportation of undocumented immigrants into the state. It also imposes new obligations on most private sector employers.

New E-Verify Requirements

Of particular note for employers are the law’s E-Verify provisions, which amend Section 448.095, Florida Statutes. E-Verify is the federal, online system that requires participating employers to submit information from the Form I-9 into the system, which checks work eligibility by comparing the I-9 information to records available to the Department of Homeland Security (DHS) and Social Security Administration (SSA). Depending on whether the I-9 information matches the federal records, the system will either indicate that the employee is confirmed to work or issue a “tentative nonconfirmation” (TNC) notice, indicating that the information does not match and that the employee may lack work eligibility. TNC’s trigger the employer’s obligation to follow specific government-prescribed steps, which may extend for 30 days or more, and report on the results.

Use of E-Verify has been voluntary for most private employers. Now, by extending E-Verify obligations beyond certain public employers, contractors, and subcontractors, the law requires all private employers with at least twenty-five employees to complete the Form I-9 and use E-Verify to confirm the employment eligibility of employees hired on or after July 1, 2023. However, employers are neither required nor permitted to use E-Verify for current employees. Under the Florida law, covered employers must document each day the system is unavailable either through screenshots, a public announcement regarding the system’s unavailability, or another communication or notice reflecting that the system is unavailable.

The requirement to use E-Verify begins this July 1, 2023. Employers must report compliance with the E-Verify law on the first unemployment tax return filed each calendar year. Potential penalties of $1,000 for each day the employer does not comply with the requirements start next year, July 1, 2024. Additionally, employers must still use E-Verify to qualify for state-funded economic development incentives, and employers who fail to do so must return any previously received incentive amounts to the Department.

Further, expanding on existing law, all employers who are contractors or subcontractors of a public agency must register for and use E-Verify; and this requirement must be included in any contract or subcontract.

Prohibition on Employing Noncitizens Without Work Authorization

Additionally, effective July 1, 2024, the law amends Section 448.09, Florida Statutes, by imposing state-based penalties on employers who knowingly employ, hire, recruit, or refer for employment a noncitizen who lacks work authorization. Under the law, the Department must place such an employer on probation for one year, during which time the employer must make quarterly reports to the Department showing compliance with the restrictions and E-Verify requirements. If an employer again violates the restrictions within 24 months of the initial violation, they risk suspension or revocation of their business licenses. Further, if the Department discovers an employer has knowingly employed an individual not authorized to work, the Department must enter an order requiring the employer to repay previously received economic development incentive awards.

However, an employer who used E-Verify to confirm the work eligibility of an employee who in fact lacks proper work authorization establishes a rebuttable presumption that the employer has not violated the applicable requirements. An employer who merely used the Form-I9 establishes an affirmative defense that they have not violated the applicable requirements.

Best Practices

Any private Florida employer who does not currently use E-Verify should assess their employee count, both current and anticipated over the near future. Employers who are now or expect to soon be covered should plan to enroll in and become acquainted with E-Verify. This is also a good opportunity to assess current compliance with the I-9 employment eligibility verification obligations that remain in place.   

Senate Bill 252 – Restrictions on COVID-19 Policies

As the COVID-19 restrictions signed into law in November 2021 are set to expire, Senate Bill 252 extends and broadens the restrictions on businesses based on individuals’ COVID-19 related decisions.

Under Senate Bill 252, employers cannot require any person to provide proof of vaccination status or post-infection recovery, or submit to a COVID-19 test, in order to enter, access, or receive services from the business. Additionally, employers cannot require any person to wear a face mask or other facial covering extending over the nose and mouth, except in the case of healthcare providers and practitioners, or when occupational or laboratory safety restrictions require facial coverings. Further, employers cannot hire, fire, or otherwise make employment decisions based on an employee or applicant’s COVID-19 vaccination or post-infection-recovery status, or their refusal to take a COVID-19 test. These restrictions apply to any business operating in Florida, including charitable organizations, not-for-profit corporations, and private clubs.

Employers who fail to comply with Senate Bill 252 may face an administrative fine of up to $5,000 per violation. Additionally, employers may be ordered to reinstate employees terminated in violation of Senate Bill 252.

Best Practices

Employers should review their current COVID-19 protocols and policies, to determine whether they impose any COVID-19 documentation, testing, or masking requirements that conflict with the new law.

For questions or assistance regarding your obligations under the new Florida legislation, contact your local Quarles attorney or:

• Otto Immel: (239) 659-4041 / otto.immel@quarles.com
• Olivia DeScala: (239) 659-4029 / olivia.descala@quarles.com