New Florida Law Blocks Certain Local Workplace Rules: Top 3 Things Employers Should Note

Under a new Florida law, employers will need to turn to state and federal agencies – rather than local governments – for guidance on certain key workplace rules. On April 11th, Governor Ron DeSantis signed HB 433 which preempts local governments from passing laws related to workplace heat safety protocols and curbs their ability to use contracting power to influence private employer wage rates and employee benefits. The new law also prohibits local governments from making their own rules about workplace scheduling or “predictive scheduling” for private employers. Here are the three top takeaways for employers as you prepare for compliance.

1. Heat Safety Protocols

Florida falls under federal OSHA jurisdiction, which covers most private-sector workers in the state. The new statute bans counties and municipalities from requiring private employers to offer heat safety protections to employees beyond what’s required under the Occupational Health and Safety Act (OSH Act).

For example, the Miami-Dade County Commission recently withdrew a bill that would have required employers to provide outdoor construction and farm workers with 10-minute breaks in the shade every two hours. Going forward, Florida employers should continue to ensure their practices comply with the federal OSH Act.

To provide a safe workplace, consider taking the following steps before summer:

• Perform a hazard analysis of all positions that may involve exposure to extreme heat. You should note that OSHA typically enforces heat related hazards through the General Duty Clause of the OSH Act.
• Prepare a heat illness prevention program, outlining a plan to reduce heat illnesses and injuries.
• Ensure employees have access to cold water throughout their shifts, provide cooling fans, and allow access to shaded areas.
• Designate an employee to monitor working conditions on hot days.
• Train employees on how to avoid heat illnesses and monitor workers for any symptoms.
• Ensure employees showing heat illness symptoms can obtain immediate medical attention.

This part of the new law will take effect on July 1.

2. Wages and Employee Benefits

Under HB 433, local governments will be prohibited from using their purchasing or contracting power to control the wages or employment benefits of entities they do business with. They will also be barred from awarding preferences to entities that offer more favorable wages and benefits to employees. Additionally, HB 433 moves local governments’ ability to:

• require an employer to pay a higher minimum wage than required by state or federal law;
• apply a state or federal minimum wage to wages that are exempt from a state or federal minimum wage; or
• provide employment benefits not otherwise required by state or federal law.

Notably, counties such as Broward and Miami-Dade – which have living wage ordinances mandating higher pay than the state minimum wage for service contractors and subcontractors – will be impacted the most by the wage requirement revisions.

These revisions to the Florida Statutes will go into effect for contracts entered after September 29, 2026.

3. Scheduling and Predictive Scheduling

Finally, HB 433 impacts a local government’s ability to force private employers to implement scheduling and predictive scheduling policies. Predictive scheduling laws require employers to provide work schedules to employees in advance. In some instances, predictive scheduling laws also require employers to provide additional benefits to employees. For instance, Oregon requires employers in the retail, hospitality, and food industries (with at least 500 employees worldwide) to provide schedules posted in an obvious location at least 14 days in advance, pay employees a penalty for shift changes with no notice, permit employees to provide input on availability and to reject shifts not on schedule, and allow employees at least 10 hours between shifts on back-to-back days.

Under Florida’s new legislation, effective July 1, any predictive scheduling requirement will have to be enacted by the Florida Legislature and Governor.

OSHA Electronic Reporting Requirements Required by July 1, 2017

Why is OSHA issuing this rule?

This simple change in OSHA’s rulemaking requirements will improve safety for workers across the country. One important reason stems from our understanding of human behavior and motivation. Behavioral economics tells us that making injury information publicly available will “nudge” employers to focus on safety. And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well. Finally, this regulation will improve the accuracy of this data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.

What does the rule require?

The new rule, which takes effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry. The electronic submission requirements do not change an employer’s obligation to complete and retain the injury & illness records.

How will electronic submission work?

OSHA will provide a secure website that offers three options for data submission. First, users will be able to manually enter data into a webform. Second, users will be able to upload a CSV file to process single or multiple establishments at the same time. Last, users of automated recordkeeping systems will have the ability to transmit data electronically via an API (application programming interface). OSHA is not yet accepting electronic submissions at this time. Updates will be posted to the OSHA website at www.osha.gov/recordkeeping when they are available.

Anti-retaliation protections

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.

Compliance schedule

The new reporting requirements will be phased in over two years:

• Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

• Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
  

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.