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.