On October 30, 2021, the Tennessee General Assembly passed significant legislation that severely curtails the ability of private employers in Tennessee to implement COVID-19 restrictions in the workplace. The new law is expected to be signed by Governor Lee later this week and then to take effect immediately.

COVID-19 Vaccines

The new Tennessee law prohibits private businesses from requiring or compelling proof of vaccination for employees and customers. If an employee objects to receiving a COVID-19 vaccine for any reason, the law specifically bans employers from taking adverse action to compel an employee to provide proof of vaccination. Additionally, businesses in Tennessee will no longer be allowed to require proof of vaccination to receive the benefits of the business’s products or services or as a condition of accessing the premises or facilities. Significantly, the new law creates a private cause of action that allows any person injured as a result of a violation to seek injunctive relief and to recover compensatory damages and reasonable attorney’s fees against an alleged violator.

Mask Mandates & Testing

Private employers in Tennessee will still be able to require employees and customers to wear face coverings. The legislation also does not restrict a private employer’s ability to require employees to undergo COVID-19 testing.

Unemployment Benefits

The new law also extends unemployment benefits to employees who voluntarily leave their place of employment because of their employer’s mandatory COVID-19 vaccination policy. Specifically, claimants will not be disqualified from receiving unemployment benefits if their employer required employees to receive a COVID-19 vaccine and the claimant refused or failed to receive a COVID-19 vaccine. The law will apply retroactively to award unemployment benefits to claimants who refused or failed to be vaccinated and were previously denied benefits on these grounds.

Exceptions for Health Care Providers

The law carves out certain health care-related exceptions which exempt from compliance (i) Medicare or Medicaid certified providers and (ii) health care providers enrolled in Medicare or Medicaid that are subject to fines or penalties for nonadherence to federal rules and regulations.

Federal Contractors

Federal contractors who risk losing federal funding if they comply with the new Tennessee law are also exempt from compliance. A private business, governmental entity, school, or employer subject to federally awarded or amended contracts, subcontracts, or postsecondary grants as a condition of receiving federal funds must submit a written notice to Tennessee Comptroller of the Treasury to apply for an exemption.

The new legislation covers a wide-range of other topics related to COVID-19. Here are some highlights:

• Governmental entities can only implement mask mandates when “severe” conditions exist (i.e. the Governor has declared a state of emergency for COVID-19, and a county has an average rolling 14-day COVID-19 infection rate of at least 1,000 new known infections for every 100,000 residents) and the mask requirement can be in effect for no more than 14 days without renewal. Religious and medical exemptions must also be offered.
• The Tennessee General Assembly extended through July 1, 2022, liability protections against a person claiming “loss, damage, injury, or death arising from COVID-19,” unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct.
• A new exception was created to Tennessee’s “mature minor” doctrine which generally prohibits healthcare providers from providing a minor with a COVID-19 vaccine without obtaining written consent from the minor’s parent or legal guardian.
• Health care providers are authorized to exercise independent professional judgment when determining whether to recommend, prescribe, offer, or administer monoclonal antibodies to a patient as a treatment or prophylaxis against COVID-19.
• Public schools are restricted from requiring a person to wear a face covering while on school property unless (1) the principal or president of the school submits a written request to the school’s governing body for the adoption of a policy requiring all persons on school property to wear a face covering; (2) “severe” conditions exist; (3) the school’s governing body adopts such a policy on a school-by-school or campus-by-campus basis; (4) the school provides face coverings for persons 12 years of age and older that meet the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration; and (5) the school provides age-appropriate face coverings for persons under 12 years of age, but over 5.
• Places of entertainment can allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies instead of a negative COVID-19 test.

Burr & Forman will continue to monitor recent developments regarding this new Tennessee legislation and keep our clients up to date on any further developments.

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