OSHA Vaccine Rule Is Blocked; CMS Vaccine Rule Is Not

This afternoon the Supreme Court issued two opinions pertaining to “mandatory vaccination rules” .

The Court blocked the OSHA vaccine or test mandate, which was applicable to employers with 100 or more employees. The Court voted 6-3 to stay or block the OSHA Rule.

In a 5-4 decision the Court allowed the CMS Mandatory Vaccination Rule to proceed, as it stayed two District Court decisions which had enjoined the Rule. The CMS Rule applies to facilities that receive Medicare and Medicaid Funding , their employees, and contractors who provide services to those facilities.

In Tennessee this means the Tennessee COVID Law will remain in effect, but businesses governed by the CMS Rule can apply with the Comptroller for an exemption from the Tennessee law.

Stay tuned for further developments.

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OSHA’s Mandatory Vaccination Rule Gets New Life

On Friday evening (December 17th) the Sixth Circuit Court of Appeals dissolved the stay of OSHA’s Emergency Temporary Standard (ETS) which requires employers with 100 or more employees to mandate that employees get vaccinated against Covid-19 or be subject to mandatory weekly testing. You can read my blogpost summarizing the ETS requirements here.

Later Friday night numerous states and interest groups filed emergency applications with the U.S. Supreme Court seeking a stay of the ETS, as well as petitions for certiorari, which are requests that the Supreme Court take the case for review. We do not yet know whether the Supreme Court will take the case (here is one bet that it will). Hopefully, we will know the answer to that soon. In the meantime, what should employers do?

Employers should prepare to comply with the ETS, though they now have more time to do so. In light of the Sixth Circuit ruling, and the likelihood of further court review, OSHA issued the following statement over the weekend:

To provide employers with sufficient time to come into compliance, OSHA will not issue any citations for noncompliance with any of the ETS before January 10 and will not issue citations for noncompliance with the standard’s testing requirements before February 9th, so long as an employer is exercising reasonable, good faith efforts to come into compliance with the standard. OSHA will work closely with the regulated community to provide compliance assistance.

Reasonable, good faith efforts to comply are key pending final resolution of the issue. This situation will continue to evolve. As always, check here for updates!

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Judge Blocks Vaccine Mandate For Federal Contractors in Tennessee, Kentucky and Ohio

A federal judge on Tuesday blocked the COVID-19 vaccine mandate for federal contractors from going into effect in Tennessee, Kentucky and Ohio.

A U.S. District Judge in Kentucky granted a preliminary injunction preventing the mandate, enforced against federal contractors and subcontractors through Executive Order, from taking effect In Tennessee, Kentucky and Ohio, which had collectively challenged the rule. The mandate in the Executive Order requires effectively all employees of federal contractors and subcontractors to be fully vaccinated by Jan. 4. The court reasoned that the Executive Order likely exceeded President Biden’s authority over federal procurement, and that the states had shown enough proof to meet the standard for a preliminary injunction.

Stay tuned for further updates.

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What Employers Need To Know About Tennessee’s COVID-19 Law

This month Tennessee passed sweeping legislation that restricts employers and others on the requirements they can impose and actions they can take pertaining to COVID-19. The highlights from an employment law standpoint are as follows:

1) Prohibits employers from requiring vaccination or proof of vaccination by prohibiting employers from taking adverse action against employees who refuse to disclose their vaccination status –  “a private business, government entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.” 

The definition of “adverse action” means to deny a person employment privileges or to “discharge, threaten or otherwise discriminate against an employee in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.”

2) Prohibits governmental employers from requiring an employee to wear a face covering, “unless severe conditions exist and the requirement is in effect for no more than 14 days. ” This provision does not apply to private employers or businesses.

3) Provides that individuals who left their employment because of an employer’s vaccine requirement or who were terminated for refusing to be vaccinated are eligible for unemployment benefits.  This section entitles an otherwise qualified claimant to receive retroactive benefits if they were separated for refusing to be vaccinated.

4) Provides that the commissioner of health has the sole authority to determine quarantine guidelines for a person if the person tests positive for COVID-19.     The definition of “quarantine” includes “the limitation or restriction of a person’s freedom of movement or isolation of a person, or preventing or restricting access to the premises upon which the person or the cause or source of COVID-19 may be found, . . ..”  

This language effectively precludes employers from implementing their own guidelines to deal with individuals who test positive or are in close contact with someone who tests positive since requiring employees to stay away from work would restrict their freedom of movement and/or restrict their access to the employer’s premises. 

The Department of Health has issued a revised document titled “Releasing Cases and Contacts from Isolation and Quarantine” that can be found here – https://www.tn.gov/content/dam/tn/health/documents/cedep/novel-coronavirus/Isolation-QuarantineRelease.pdf.  Unless or until the Commissioner says otherwise, this Guidance will likely constitute the applicable “quarantine guidelines” for purposes of the bill.  It is important to note the difference in the sections of the Guidance as it relates to actions which “must” be done if a person tests positive and those which “should” be done when a person is a close contact but has not tested positive.

5) Limits potential causes of action for loss, damage, injury, or death arising from COVID-19 to situations when the claimant proves by clear and convincing evidence that the defendant proximately caused the loss, damage, injury or death by an act or omission constituting gross negligence or willful misconduct.  It also contains certain pleading requirements that must be met.

6) Creates a private cause of action for injunctive relief and to recover compensatory damages and reasonable attorneys’ fees against an alleged violator.

7)  The act takes effect immediately and, except for the section regarding liability, terminates on July 1, 2023.

The law does not apply to certain businesses, including healthcare providers who are certified by or subject to fines from the Centers for Medicare & Medicaid Services (“CMS”). So, if you are covered by the CMS Mandatory Vaccination Rule you can (and must) comply with it without violating this Tennessee law.

Additionally, federal contractors and subcontractors who have to comply with the Executive Order which requires mandatory vaccination may seek an exemption from the law by applying in writing to the Tennessee Comptroller of the Treasury. To obtain the exemption you must show that complying with the Tennessee law would result in a loss of federal funding and an exemption is necessary to conform to a federally awarded contract or subcontract.  If granted the exemption is good for one year and may be renewed for no more that one calendar year.

The legal landscape on COVID-19 is changing rapidly. As always, stay focused, plan ahead and check here for updates.

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OSHA Suspends Mandatory Vaccination Rule After 5th Circuit Issues Stay

Late Friday the 5th Circuit Court of Appeals issued a stay of the OSHA ETS, a/k/a/ the Mandatory Vaccination Rule. After that ruling OSHA announced yesterday that it would suspend “activities related to the implementation and enforcement of the ETS pending future developments in the litigation”.

Please remember that this action by OSHA does not apply to employers governed by the Executive Order for federal contractors and subcontractors, or employers governed by the CMS Rule (hospitals, ambulatory surgery centers and other CMS certified facilities).

Stay tuned for further developments.

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OSHA’s Mandatory Vaccination Rule- What Employers Need To Know

On November 4th OSHA released an Emergency Temporary Standard (ETS) to minimize the risk of COVID-19 transmission in the workplace. The ETS requires most employers that have a total of 100 or more employees to either require all employees to be fully vaccinated against COVID-19 or be subjected to weekly testing and wearing a face covering at work. The highlights are set forth below.

Who is covered? All employers with 100 or more employees. Employees at all locations count. Part-time employees count. Independent contractors do not count.

Who is not covered? 1. Federal Contractors and Subcontractors covered under the “Mandatory Vaccination Executive Order”; 2. Healthcare providers who receive Medicare and/or Medicaid and are covered by the “CMS Mandatory Vaccination Rule”.

Are some employees exempt? Yes. The ETS does not apply to employees of covered employers : 1. Who do not report to a workplace where other employees or customers are present; 2. While working from home; 3. Who work exclusively outdoors.

Do the disability and religious exemptions still apply? Yes. Those employees who are legally entitled to a reasonable accommodation because of a disability (under the ADA) or a sincerely held religious belief (under Title VII) do not have to be vaccinated. Additionally, vaccination is not required for any employee for whom a vaccine is medically contraindicated or for whom medical necessity requires a delay in vaccination. The ETS provides that if an employee has a positive test result for, or diagnosis of, COVID-19, vaccination cannot be required for 90 days.

Do employers have to publish a policy? Yes, within 30 days from when the ETS was published. So, employers must have a policy by December 4th. OSHA has issued a form policy for employers to use.

When does vaccination have to be completed? By January 4, 2022. For employees who are getting a two dose vaccine (Pfizer or Moderna) the first shot must occur on or before December 4, 2021.

What records must covered employers maintain? Employers must ensure all employees who are not exempt are fully vaccinated. As part of fulfilling that requirement employers must maintain a record of each employee’s vaccination status and preserve acceptable proof of vaccination. Acceptable proof is a vaccination card, a record of immunization or a medical record. The employer must also maintain a roster of each employee’s vaccination status. These records and roster must be maintained as confidential medical records in accordance with federal law. These records must be preserved so long as the ETS is in effect.

Does the ETS provide for paid leave? Yes. Employers must provide up to 4 hours of paid time at the regular rate of pay, including travel time, for employees to get vaccinated. Employers must also provide reasonable time and paid sick leave to recover from side effects experienced from any vaccination.

Can employers require testing instead? Yes. Employers can elect to require weekly testing for all unvaccinated employees instead of vaccination. These employees must be tested at least once every seven days and provide documentation of the test result no later than the 7th day. If the employee does not comply with these requirements the employer must keep the employee removed from the workplace.

Who pays for the test? Employees must pay for the test. But employers can choose to do so. And a “do it yourself/at home” test result is only acceptable if it is conducted in the presence of the employer.

Do unvaccinated employees have to wear masks/face coverings? Yes, whenever they are around others in the workplace. An exception exists for eating and drinking.

What about employees who test positive? Employers must require employees to immediately notify them if they test positive or are diagnosed with COVID-19. These employees must be immediately removed from the workplace until they receive a negative NAAT test result and meet the CDC return to work criteria.

Are there other notification requirements? Yes. In addition to the policy employers must provide employees with the document entitled “Key Things To Know About COVID-19 Vaccines” and advise them of their rights to be free from discrimination for reporting a work related injury or illness and free from retaliation from making a complaint.

Are there OSHA reporting and record keeping requirements? Of course. All COVID-19 fatalaties must be reported to OSHA within 8 hours. Each COVID-19 hospitalization must be reported with 24 hours. And most records must be made available to OSHA for inspection by the end of the next business day.

Does the ETS preempt state law? Ye, if the state law is contrary to or requires less than the ETS. So if the Bill recently passed by the Tennessee General Assembly actually becomes law the provisions in it which pertain to employers will be moot.

The big unknown is whether the ETS will survive legal challenges. On Saturday, November 6th, the United States Court of Appeals for the 5th Circuit, which covers Louisiana, Texas and Mississippi, issued a temporary stay preventing the ETS from taking effect. The government has until 5p.m. on Monday, November 8th, to respond. The Order did not specify whether the stay is nationwide or applies only to the states under its jurisdiction. However, there are similar legal challenges pending in other courts, including the 6th Circuit Court of Appeals, which includes Tennessee.

In the meantime employers should prepare to comply with the ETS. While it might be enjoined or withdrawn, that has not yet happened and might not happen. As always, the failure to plan is a plan to fail.

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Sign, Sign, Everywhere A Sign?

In May of 1971 the Canadian musical group Five Man Electrical Band released “Signs” which the website SongFacts describes as “a prescient look at class division and property rights.[i]  Some of you may be more familiar with the 1990 cover of Signs released by the band Tesla.  The song features the following chorus: 

Sign, sign everywhere a sign. 
Blockin’ out the scenery, breakin’my mind
do this, don’t do that, can’t you read the sign? 

When Governor Lee signed House Bill 1182 into law on May 19th he may have been envisioning signs on public bathrooms everywhere throughout the state.  But the law that would make that vision a reality is on hold, at least for now. 

The so called “Business Bathroom Law” requires any public or private business or entity that operates a business or facility that is open to the general public to post signage if they have a formal or informal policy of allowing a “member of either biological sex to use any public restroom within the building or facility.”[ii]  The statute defines “public restroom” as any “locker room, shower facility, dressing area or other facility or area that is open to the general public, designated for a specific biological sex [and is] a facility or area where a person would have a reasonable expectation of privacy.”  Unisex, single occupant and family restrooms are exempt from this definition.[iii] 

The Business Bathroom Law requires that businesses or facilities that allow individuals of either sex to use their bathrooms to post a notice at the entrance of each of their restrooms.  The notice may be located either on the public restroom door or within one foot of the public restroom door frame.[iv]  The law also sets forth specifics on the signs that must be posted. 

Covered businesses or facilities must purchase signs that are at least 8 inches wide and 6 inches tall.  The top third of the sign must be red and read NOTICE in yellow font.[v]  The bottom two-thirds of the sign must contain a white background with black boldface, block letters that read:

THIS FACILITY MAINTAINS A POLICY OF ALLOWING THE USE OF RESTROOMS BY EITHER BIOLOGICAL SEX, REGARDLESS OF THE DESIGNATION OF THE RESTROOM[vi]

If a qualifying business or facility fails to comply with the law the business or entity, once notified of noncompliance, will have 30 days in which to comply before any action is taken against it.  Because the statute is part of the Building Regulations chapter of the Tennessee Code Annotated a violation results in a class B misdemeanor which is punishable by up to 6 months of jail time and/or a $500.00 fine.[vii]

The Business Bathroom Law came under attack shortly after Governor Lee signed it.  In May Davidson County District Attorney General Glenn Funk said he would not press charges against anyone refusing to post the required signs.  Attorney General Funk deemed the law as “transphobic” and “homophobic” and said that his office “will not promote  hate”[viii]

In June the American Civil Liberties Union and its Tennessee Chapter filed suit in Federal Court on behalf of two Tennessee businesses and their respective owners, Bongo Productions, LLC, Robert Bernstein, Sanctuary Performing Arts LLC and Kye Sayers. 

A second Lawsuit was filed a few days later.  Both cases assert that the Business Bathroom Law is unconstitutional on multiple grounds, including that it violates the First Amendment right “against compelled speech”.[ix]

On July 9th United States District Judge Aleta A. Trauger issued a Memorandum Opinion granting the Plaintiffs’ Motion for a Preliminary Injunction in Bongo.  Judge Trauger found that the Plaintiffs’ had met their burden to obtain a preliminary injunction based on their claim that the Business Bathroom Law violated their right against compelled speech.  Judge Trauger held as follows:

Some messages do not have to be compelled to be repeated; they surface, time and again, by dint of their persuasiveness and their importance. More than a dozen times, the Supreme Court, or a Justice of that Court writing separately, has repeated the classic declaration, originally set forth by the Court in West Virginia State Board of Education v. Barnette, that, “[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. That rule is not founded simply on an abstract love of unfettered and uncompelled speech. The First Amendment holds its privileged place in our constitutional system because, “[w]henever the Federal Government or a State prevents individuals from saying what they think on important matters or compels them to voice ideas with which they disagree, it undermines” both “our democratic form of government” and the very “search for truth” necessary for a thriving society to persist.  Because that principle retains its vitality today, and because the law at issue in this case is a brazen violation of it, the court will grant the plaintiffs’ motion for a preliminary injunction.  (internal citations omitted).[x]

As of the date of this writing the preliminary injunction is still in effect.  While the preliminary injunction could ultimately be set aside by Judge Trauger or an appellate court Tennessee businesses currently do not have to comply with the Business Bathroom Law.  Businesses should keep a close eye on this litigation because in the event the injunction is lifted, compliance will be mandatory and there will likely be a short time in which to comply. 


[i] http://www.songfacts.com

[ii] House Bill 1182

[iii] Id. 

[iv] Id

[v]  Id

[vi] Id.

[vii] Tenn Code Ann §40-35-111 (e)(2)

[viii] See Mariah Timms Nashville DA Won’t Enforce ‘Hate’ Bill Requiring Businesses To Post Signs For Transgender Bathroom Access, Tennessean (May 24, 2021), htpps\\www.tennesseean.com/story/news/politics/2021/05/04/Nashville-da-not-enforce-trans-bathroo-signage-bill-tennessee/7422294002/. 

[ix] Bongo Production, LLC v. Carter Lawrence, et al. Case No. 3:21-cv-00490 7-9-21 Mem Op. at pp. 17-18, 30-31

[x] Id. at pp. 30-31

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OSHA Weighs In On Mandatory COVID-19 Vaccines

As you know from my prior posts, the EEOC has stated that employers can require employees to be vaccinated against COVID-19, subject to exceptions for those employees who have a disability that prevents them from being vaccinated and those employees who have a good faith religious belief which prohibits vaccinations. Recently, OSHA weighed in on the issue of mandatory vaccinations in the workplace.

OSHA also allows mandatory COVID-19 vaccinations. However, if an employer makes vaccinations mandatory and an employee has an adverse reaction, that is a recordable event under OSHA assuming the other factors are met for recording an event on the OSHA log. Those factors include any of the following: days away from work, restricted work, transfer to another job or medical treatment beyond first aid.

OSHA’s FAQs on COVID-19 are a helpful resource, and can be found at http://www.osha.gov

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OSHA’s Latest Guidelines on COVID-19

At the end of January OSHA issued another set of Guidelines for dealing with COVID-19 in the workplace. These Guidelines are not legal requirements. However, I suspect that if OSHA investigates and sees that a business is not following these Guidelines a determination that the business has violated OSHA’s General Duty clause, which states that employers have a general duty to keep the workplace “free from recognized hazards that are causing or likely to cause death or serious physical harm”, is likely.

Among other things the Guidelines state:

  1. Employees who have been vaccinated against COVID-19 must still follow the protective measures, including wearing a mask, social distancing and hand washing.
  2. In adopting a workplace safety plan employers should engage employees to ensure their thoughts and concerns are considered. It is an interactive process.
  3. Employers should consider protections for workers at a higher risk. But be careful. This does not mean you automatically send all older employees, or employees with known underlying health issues, home. Doing so could lead to claims of age and/or disability discrimination. Instead, make a decision that applies to all high risk employees, not just a certain group or groups.
  4. Follow the CDC isolation guidelines for employees who have COVID-19 or have or may have been exposed to it.

The bottom line is employers should continue to be proactive, responsive and flexible.

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Can an employer require its employees to take the COVID-19 vaccine?

In November, pharmaceutical companies Pfizer, AstraZeneca and Moderna announced that they had each developed a coronavirus vaccine.   This is, obviously, wonderful news.  Under the current vaccine distribution plan for the State of Tennessee, residents and employees of nursing homes and long-term care facilities will receive the vaccine first, followed by first responders, low exposure healthcare workers and people with two (2) or more high-risk comorbidities. 

These vaccines will likely not be available to the general public for several months.  Many people will take the vaccine voluntarily.  But as an employer, can you require your employees to be vaccinated against the coronavirus as a condition of employment? 

The answer is likely yes, with some exceptions.  The EEOC has not yet issued any guidance on this issue.  However, the EEOC has previously issued guidance on whether employers can require all employees to take the flu vaccine.  With respect to the flu vaccine, the EEOC states that an employer can require an employee to be vaccinated unless the employee should be exempted because of an ADA disability or his or her sincerely-held religious beliefs. 

If the employee has an ADA disability that prevents the employee from taking the flu vaccine, the employer must analyze whether it can reasonably accommodate this disability without undue hardship.  For example, can the employer reasonably accommodate the employee’s disability and address the health and safety concern by having the employee wear a mask or PPE at all times when the employee is around others?  If this reasonable accommodation will not create an undue hardship, then the employer must provide that reasonable accommodation.

An employee’s sincerely-held religious belief, practice or observance may also prevent that employee from taking a vaccine, whether it is the flu or the coronavirus vaccine.  For those employees, the employer must also determine whether it can provide a reasonable accommodation, such as the mask or PPE requirement, or working remotely, that will not impose an undue hardship on the employer.  The EEOC goes on to state that “generally, ADA-covered employers should consider simply encouraging employees to get the influenza vaccine rather than requiring them to take it.”

Given that COVID 19 appears to be more deadly to some and more contagious than the flu, the EEOC might change its position on the issue.  Certain industries may also have obligations to vaccinate employees, such as those employers in the healthcare industry.  For now, most employers should assume that they will not be able to require vaccinations for those employees who have an ADA disability or sincerely-held religious belief that prohibits vaccination and will have to consider whether those employees can be reasonably accommodated without undue hardship. 

Employers considering mandatory vaccination policies should review relevant EEOC, CDC and any state guidance and consult legal counsel to ensure that they meet their goal of protecting the health and safety of their workforce without violating applicable laws.   

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