Latest update in series:
What’s Next for Employers After the Supreme Court’s Vaccine Rulings?
(January 14, 2022)
Related webinar replays:
OSHA ETS Employee COVID-19 Vaccination and Testing Mandates New Requirements,
Tips and Traps for Large Employers (November 10, 2021)
COVID-19 Employee Vaccine and Testing Mandates New Requirements for Large
Employers, Federal Contractors and Healthcare Organizations (September 16,
Tennessee and Alabama recently enacted legislation that impacts employers’ ability to require employees to get vaccinated against COVID-19. On Nov. 12, 2021, Tennessee Gov. Bill Lee signed legislation that prohibits many employers in the state from requiring proof of COVID-19 vaccination from employees, job applicants and customers. The prior week, on Nov. 5, Alabama Gov. Kay Ivey signed a law that requires employers to abide by a specific exemption process when mandating that employees get vaccinated.
These new laws arrive as multiple states have advanced laws and policies restricting employers’ ability to implement vaccine mandates. On Oct. 11, 2021, Texas Gov. Greg Abbott signed an executive order substantially limiting private employers’ ability to mandate COVID-19 vaccinations. Florida Gov. Ron DeSantis recently announced a special session of the state legislature, from Nov. 15 to 19, to address various COVID-19-related issues, including employer vaccine mandates. These laws also come amid efforts by the federal government to expand vaccination in the workplace, in some cases requiring certain employers to mandate that their employees get vaccinated.
New Tennessee Law
Prohibition on most vaccine mandates. On Nov. 12, Tennessee Gov. Bill Lee signed legislation prohibiting many employers in the state from requiring proof of COVID-19 vaccination from employees, job applicants and customers. The law prohibits private businesses, governmental bodies and schools from taking “adverse action” against individuals who refuse to provide proof of COVID-19 vaccination based on any objection, for any reason, to receiving the shot. Under the law, a business cannot deny a person “employment, privileges, credit, insurance, access, products, services, or other benefits” based on a refusal to provide proof of vaccination due to the person’s objection to receiving the vaccine. Specific to employees, an employer cannot “discharge, threaten, or otherwise discriminate against” the employee “in any manner that affects the employee’s employment,” because of the employee’s refusal to provide proof of vaccination. An individual whose rights under the statute are violated can sue for damages, an injunction and attorneys’ fees.
Exceptions. A few businesses are exempt from this prohibition due to conflicts with federal vaccination requirements. These businesses include healthcare providers that are certified by or subject to fines by the Centers for Medicare & Medicaid Services. Federal contractors or subcontractors may also seek an exemption by applying in writing to the Tennessee comptroller of the treasury if the prohibition would result in a loss of federal funding. Others exempt from the prohibition on proof-of-vaccination requirements include nursing homes, assisted living facilities and residential hospice facilities, as well as entertainment venues that ask for either proof of vaccination or proof of a recent negative COVID-19 test to allow entry.
Unemployment benefits. Under the law, employees who leave employment because of a refusal to receive a COVID-19 vaccine are not disqualified from receiving unemployment benefits. These employees cannot have their benefits reduced and are eligible for retroactive payment of unemployment benefits if they were previously denied benefits based on a refusal to get vaccinated.
Other provisions. The law includes other provisions, ranging from restrictions on mandatory masks in schools, to prohibitions on local government authority to mandate vaccines, quarantines and restrictions on businesses. It gives the Tennessee commissioner of health the exclusive authority to develop quarantine guidelines and requires that quarantines be lifted whenever an individual tests negative for COVID-19. The law also makes it harder for plaintiffs to file lawsuits based on COVID-19-related injuries.
What about federal vaccine mandates? In some places, the law appears to steer clear of a direct conflict with the federal government, including by exempting federally certified or funded healthcare facilities, airport authorities and the federal government. It also creates a pathway for an exemption for federal contractors that are subject to federal contractor vaccine requirements.
There are open questions, however, about the extent to which the law conflicts with the Emergency Temporary Standard (ETS) published by the federal Occupational Safety and Health Agency (OSHA) on Nov. 5, 2021. The OSHA ETS requires employers with more than 100 employees to mandate that their employees either get vaccinated or provide weekly negative COVID-19 tests. A weekly testing requirement would not run afoul of the Tennessee law, so this may remain a viable alternative for Tennessee employers.
On Nov. 5, 2021, Alabama Gov. Kay Ivey signed legislation requiring employers in the state to follow a specific process to allow employees to claim medical and religious exemptions from COVID-19 vaccine mandates.
The Alabama law requires employers to use a specific exemption form (on pages 2-5 of the bill) if they mandate vaccinations. The prescribed form contains eight specific options for requesting a medical exemption, including providing a signed doctor’s note or claiming a COVID-19 diagnosis in the past 12 months. The Alabama law also allows the employee to request an exemption based on “sincerely held religious beliefs, practices, or observances.” Under the law, submission of the form creates a presumption that the employee is entitled to an exemption.
The statute sets forth an appeals process for employees when the employer denies the employee’s requested exemption. The employee has seven days to file an appeal with the state Department of Labor, which must decide the appeal within 30 days. In the meantime, the employer cannot terminate or reduce the pay of the employee. If dissatisfied with the result at the state Department of Labor, the employee has 14 days to file an appeal in “a court of competent jurisdiction.” The law otherwise does not create a private right of action. Unlike the Tennessee law, the Alabama law does not exempt any specific employers or categories of employer that are subject to federal vaccination requirements.
If you have any questions about the state or federal COVID-19 laws, please contact the authors of this article, your McGuireWoods contact, or a member of the firm’s labor and employment team or COVID-19 response team.