“I want to stand for freedom,’’ said Bean, of Jacksonville. “But there’s also the argument that if I own a small company, and I have underlying health conditions, and I want to make sure all those that interact with me are safe, are vaccinated, who are we to tell that small business owner what they can’t do?”
Bean and other legislators were hearing from Florida businesses that they didn’t want to be told what they couldn’t do any more than they wanted the federal government to tell them what they had to do to keep their workplaces safe.
So legislators in the Republican-dominated House and Senate faced a dilemma as they convene a weeklong special session on Monday: cross the governor who had become a national rock star with the Republican base, or find a work-around that would appease both sides.
Legislators first tried to persuade the governor the issue could best be handled in the regular legislative session, but DeSantis, who was battling the federal government on mask mandates in schools and positioning to go to war over the federal government’s vaccine mandates, wanted to demonstrate the state was pushing back in a more high-profile way.
On Oct. 21, as legislative committees were meeting in Tallahassee to discuss legislation for the 2022 regular session, the governor traveled to Clearwater — the home region of House Speaker Chris Sprowls and Senate President Wilton Simpson.
There, he surprised the presiding officers by holding a press conference to announce he was calling a special session in November.
“We’re here to announce that we need to take action to protect Florida jobs,’’ he said. “...We believe in having basic medical freedom and individual choice and that your right to earn a living should not be contingent upon COVID-19 shots.”
Before the news conference ended, Sprowls, a cautious politician, signaled his frustration at the announcement legislators had urged the governor not to make by issuing a three-sentence statement.
“This morning Governor DeSantis announced that he plans to call the Legislature into a special session,’’ Sprowls, a Palm Harbor Republican, wrote to legislators. “At this time, we have not received the dates or details regarding any proposed call. We are in communication with the governor’s office and our partners in the Senate, and we will share details with you as they emerge.”
It would be five hours before he and Simpson would issue another statement indicating they were on board. The issue brought to the surface the tug of war between the legislative and executive branches of Florida government. DeSantis has spent much of the past several months seeking to become the face of the opposition to the Biden administration’s COVID-19 policies he perceives as overreaching while the legislative branch has considered the governor’s reaction as going too far.
“I would say he was preemptive,” said state Sen. Dennis Baxley, an Ocala Republican. “But I call that leading, which is fine with me.”
The governor’s office did not respond to requests for comment about legislators not agreeing with the governor in calling the session when he did.
DeSantis announced the special session before any proposals had been drafted or agreed to, something legislative leaders always attempt to avoid because it can lead to breakdowns, confusion and disagreement.
Instead, the governor broadly described wanting legislation that would make it illegal to require governments to require employees to be vaccinated. He said he sought another bill holding employers legally responsible if their employee gets sick from the COVID-19 vaccine by giving employees a cause of action to sue them if they mandate vaccinations.
Then, to underscore the governor’s adversity to vaccine mandates, he proposed revisiting the 2021 law that protects businesses from coronavirus-related liability and suggested removing the protections for companies that require their employees to be vaccinated.
By Oct. 29, when the governor announced the dates of the session, he had refined his bullet points for what he wanted legislators to accomplish. The first one read: “Protect current and prospective employees against unfair discrimination on the basis of COVID-19 vaccination status and ensure robust enforcement for this protection.”
As the governor was pressing legislators to convene the special session, businesses were not clamoring for it.
More than 100 companies, including some of the largest corporations operating in Florida, had adopted vaccination requirements for their employees with some already issuing layoff notices to those who didn’t comply.
In an attempt to stop the practice, the DeSantis administration tried to use a 2021 law prohibiting businesses from asking customers for vaccination status to regulate against vaccine mandates. The Department of Health compiled a list of businesses and local governments it said were in violation. They included: Disney, Walmart, AT&T, CVS Health, Live Nation, Royal Caribbean cruise line, Starbucks, Delta, Northrop Grumman and dozens of others.
Although the vaccine passport law did not ban vaccine mandates, DOH issued one fine: $3.5 million against Leon County, a local government not a business, for requiring 714 employees to show their vaccine status and for firing 14 who refused to take a vaccine. The county is challenging it.
Meanwhile, as DeSantis announced the special session, Florida Chamber of Commerce President Mark Wilson told the Herald/Times: “We’re not asking for legislation.”
He said the Chamber was urging legislators to find a way to let businesses keep their options open because they know what’s best for keeping their employees safe.
“We’ve always been against government mandating what business can do and can’t do,’’ Wilson said at the time. He told his members last week that the proposed legislation “provides certainty and flexibility” in the face of the uncertainty created by the federal government.
Bill Herrle, executive director of the National Federation of Independent Businesses in Florida, said his organization also supports the legislation but, he added, the business owners he represents don’t need guidance on how to operate during the pandemic. “
“We’re almost two years into this,” he said. “Most businesses have figured out some sensibility about how to approach this.”
Even among Republicans, only Anthony Sabatini, a Howey-in-the-Hills state representative who has criticized party leaders, was the only legislator calling for a special session about vaccine mandates.
But the outcomes of legislative special sessions are usually preordained, so lawmakers eager to appease the governor needed to find a middle ground.
Working behind the scenes, with corporate lawyers from some of the state’s leading businesses, Sprowls and Simpson and their staffs went to work to craft a compromise.
Their biggest fear: The legislation would put businesses in a position to make a choice between following state law or federal law and any conflicts would have to be resolved in court.
“Associated Industries of Florida, the hospital association, a lot of other associations and all of your large employers had an over-sized influence in helping clarify where Florida’s position should be on liability protection,’’ said state Sen. Jeff Brandes, R-St. Petersburg, the Senate sponsor of the 2021 liability bill.
The clarification: Any mention of punishing businesses by removing liability protections or creating new causes of actions for employees was dropped from the wording of the bills.
With the most contentious issue for businesses removed, legislators left several provisions which the governor will be able to campaign on as a victory.
They include a ban on all governments and schools from requiring their workers be vaccinated, a clarification that schools are prohibited from requiring masks and that parents must be allowed to decide, a public records exemption for any COVID-related complaint or investigation into a business, and a proposal intended to set up a future clash with the Biden administration — a bill to allow the state to study withdrawing from the business safety protections required under the federal Occupational Safety and Health Administration.
But they also added a provision that puts a sunset on the entire package of vaccine-related provisions, requiring them to expire June 1, 2023, unless they are renewed.
DeSanits is widely expected to use the legislation to promote his re-election campaign, which he officially announced last week.
But signs of friction have emerged. As the backroom negotiations continued, DeSantis signaled to business that he was not pleased.
Appearing as the keynote speaker before the annual meeting of the Florida Chamber of Commerce on Oct. 30, DeSantis warned businesses to expect a rebuke from politicians like him if they used their clout to influence political issues.
“You know, if you do it, you are also going to come by some people on the other side, like me, who are going to say, ‘Well, wait a minute, if you’re going to criticize what we’re doing I may criticize some of the things you are doing,’ ’’ he said.
“I may look under the hood and not like some things. I got a podium. I got cameras that will follow me around. Maybe I’ll go talk about that a little bit. And so, I think it’s something that’s very damaging.”
Now, legislators are portraying their check on the executive as a demonstration of effective collaboration.
“The governor expresses what he’d like to accomplish, and the speaker and the president, knowing their respective chambers, worked with the governor to come up with something that they believe we will be able to pass,’’ said state Sen. Kathleen Passidomo, R-Naples. She commended the governor for “being willing to listen.” Passidomo will be Simpson’s successor as Senate president.
But, Passidomo acknowledged, if legislators “interfere in business relations” and tell companies what they cannot do in a public health emergency, “it can become a slippery slope.”
Democrats, meanwhile, have blasted the call for the special session as an unnecessary intrusion into business decision making.
Senate Democratic Leader Lauren Book of Plantation called it a “clear attack on Florida businesses and local leaders who have taken steps to protect Floridians.”
State Sen. Darryl Rouson, D-St. Petersburg, said that his constituents would prefer legislators to be discussing “things like evictions, the housing crisis, affordability of clean, safe and decent housing” and the troubled unemployment compensation system.
“This is one big show trial. This is one big appeal to the base,’’ said state Rep. Joe Geller, D-Aventura. “It’s pandering to a narrow but extremely vocal base.”
He said most of his constituents don’t support government bans on proactive protections against COVID-19. “Most people want this virus to go away eventually and that takes some preventive measures.”
Geller also objects to the depiction of the session by Republicans as needed “to preserve freedom.”
“You don’t have the freedom to drive drunk because it’s going to adversely impact somebody,’’ he said. “You don’t have the freedom to send your kids to school without the DPT or whooping cough vaccines, because it affects my freedom and my right to have my kid go to school and be safe. There’s a lot of things you’re not free to do in a civilized society.”
©2021 Miami Herald. Distributed by Tribune Content Agency, LLC.
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