Florida Legislative Update

David Langham, Deputy Chief Judge

The 2022 session was interesting. House Bill 959 passed, but the final version no longer included the amendment of section 120.541, which imposes safeguards on the implementation of administrative rules. Senate Bill 1874 started as a much broader proposal with adjustments to 15 chapters of the Florida statutes. It was laid on the table in favor of HB 959 instead.

Just as there are broad proposals, bills can be very brief. HB 689 was filed to amend section 112.1815. Fla. Stat. That section created compensability for mental injuries without a physical trauma. It is commonly referred to as the PTSD statute. It was first passed in 2018 and afforded compensability when a “first responder” suffered posttraumatic stress disorder from any of 11 “qualifying events” listed in the statute. This amendment changes the statute of repose on the potential to collect benefits for PTSD.

Additionally, SB 542 was passed, and signed by the governor. This was discussed in 2021 and illustrates the maxim that bills sometimes require multiple attempts to achieve passage. It interests the workers’ compensation community because we have a fair number of opportunities to examine the “employer/employee relationship” in various disputes. The Florida workers’ compensation law depends on the employment relationship, and intent of the parties may be of relevance.

The passage of SB 542 is not an amendment of the Florida workers’ compensation law, and may have largely escaped attention. It amends Chapter 448.111, the “General Labor Regulations.” There is clarity in 448.111(2) stating this new law applies to the evidence in any “cause of action brought under s. 440.10, s. 440.192, s. 440.38, s. 440.381.” Those are clearly portions of the workers’ compensation law.

The law impacts determinations of employee status based upon “actions of a business” during either a “public health emergency” (one might here reflect upon our recent COVID, but it seems applicable to emergencies of less systemic effect than a pandemic), or “a state of emergency declared by the governor.” The statute provides that various “actions of a business . . . may not be used as evidence” when a worker is seeking “to recover lost wages, salary, employment benefits, or other compensation.”

Essentially, if a business treats those “engaged individuals” (note that it avoids the used of conclusory labels like “employee”) with dignity and respect as regards amelioration or avoidance of some urgency such as the SARS-CoV-2 pandemic, that treatment cannot be used as evidence that the employer must have considered the “individuals” to be “employees.” Thus including such “individuals” in some provision of compensation or training or health care does not support that the persons were “employees.”

The law essentially encourages good behavior and equal access to emergency response such as education, training, safety devices or precautions. It should alleviate angst and questions in the setting of emergencies of various descriptions. The law will perhaps encourage and facilitate the actions of employers in responding to the challenges of health and other emergencies without raising questions of how their emergency response might be used as evidence in regards to later analysis of employer/employee relationship and the Florida workers’ compensation law.

The legislature also removed the constraints regarding the operation of OJCC offices. Following the deletion of the statutory mandate for 17 district offices, the Division of Administrative Hearings this spring consolidated District Lakeland into Tampa and Sarasota, District Port St. Lucie into West Palm Beach, and District Sebastian into Daytona and West Palm Beach. Part of that realignment will see all OJCC mediations held by Zoom unless an inperson mediation is requested.

Thus, 2022 was not completely quiet in workers’ compensation. Some of these changes may be seen as landmarks, but there were no major changes in the substantive law of Chapter 440.

Thus, 2022 was not completely quiet in workers’ compensation. Some of these changes may be seen as landmarks,

David W. Langham, has been the Florida Deputy Chief Judge of Compensation Claims since 2006. His legal experience includes workers’ compensation, employment litigation, and medical malpractice. He has delivered hundreds of professional lectures, published over forty articles in professional publications, lectures, published over forty articles in professional publications, and has published over 950 blog posts regarding the law, technology, and has published over 950 blog posts regarding the law, technology, and professionalism. David is a student, a teacher, a critic, a coach, and a leader. He lives in Pensacola, Florida, with his wife, Pamela Langham, Esq.