“You know why employment law is so fun? Because you just can’t make this stuff up.”

This is a comment frequently made by my mentor and co-author, Ward Phillips. He’s usually referring to the interesting (“can’t- make-them-up-if-you-tried”) sets of facts our cases often present. Being an employment lawyer continues to be fun. But lately, in this COVID-19 era, it has also been hectic. Vaccine mandates from Washington and prohibitions on those very mandates from Nashville have kept us on our toes (or at least our fingertips as we scrolled for the most recent legislative and litigation updates). In this column, we address the new Tennessee law (Public Chapter No. 6, effective Nov. 12, 2021) that prohibits (most) employers from taking adverse actions against employees who refuse to provide proof of vaccination status if they object to receiving the COVID-19 vaccine for any reason.[1]

Before Public Chapter No. 6 went into effect, it was perfectly legal for Tennessee employers to implement vaccine mandates, as long as they complied with certain accommodation requirements. That is no longer the case — at least until the law sunsets in July 2023.[2] Employers who implemented mandatory vaccine policies should revisit those immediately or risk facing civil lawsuits. We outline the details below.

Prohibits Vaccine Mandates

“A private business, governmental 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.”[3] This is now the law in Tennessee. Sound broad? That is by design. The purpose of the new law “is to safeguard the constitutional rights and liberty interests of persons during the COVID-19 pandemic.”[4] The new law is to “be construed broadly to effectuate [this] purpose.”[5]

Also important, though, is what the law does not do. It does not prohibit private businesses from requiring employees to wear masks in the workplace. Nor does it prohibit private businesses from asking employees to provide proof of their vaccination status. It just prohibits employers from taking an adverse action against those employees who object. In other words, employers can request proof of vaccine status, but they are left with no recourse to if an employee proffers an objection.

Speaking of objections, on what grounds can employees object to the vaccine? The answer: on any ground they want. Before Public Chapter No. 6, exemptions to vaccine mandates were limited, under Title VII and the Americans with Disabilities Act, to an employee’s sincerely held religious beliefs or disability status. Tennessee’s new law broadens the objections beyond just religious or disability grounds. Instead, employees can object “for any reason.” Freedom? Sure. Fear? Yes. Now, it matters not why the employee objects, just that they object.

Covered Entities

To whom does this new law apply? Private businesses, governmental entities, schools or local education agencies are all prohibited from taking adverse action against individuals who oppose the vaccine.[6] “Private business” is defined broadly (again, on purpose) to encompass individuals and all manner of incorporated and unincorporated entities, for-profit and non-profit alike.[7] It excludes certain health care providers and assisted living facilities.[8]

Can employers get an exemption? At one point they could. They cannot now. But they might be able to in the future. Let’s explain.

The new law provides that employers who are federal contractors can seek an exemption from the Tennessee Comptroller of the Treasury if compliance with Public Chapter No. 6 would result in the loss of federal funding.[9] At the time the legislation was drafted, the federal government, through Executive Order 14042 and the Safer Federal Workforce Task Force, required all federal contractor employees to be vaccinated by Jan. 18, 2022. The exemption process was a way for Tennessee employers who are also federal contractors to comply with the federal mandate without running afoul of state law. But on Nov. 30, 2021, the U.S. District Court for the Eastern District of Kentucky issued an order granting a preliminary injunction to block the enforcement of the vaccine mandate for federal contractors in all covered contracts in Kentucky, Ohio, and Tennessee.[10] As a result, the Tennessee Comptroller’s office has suspended all exemptions with the caveat that they “may be reinstated if the injunctions are lifted and it is legally permissible.”[11]

‘Adverse Action’

The broad brush used to paint Public Chapter No. 6 was not limited to objections and covered entities. It was also used in drafting what “adverse actions” are prohibited against employees who object to the vaccine for any reason. It obviously includes termination, but also includes discrimination “in any manner that affects the employee’s employment, including compensation, terms, conditions, locations, rights, immunities, promotions or privileges.”[12]

Does this prohibit employers from offering incentives (e.g., extra vacation time or a gift card) to employees who get the vaccine? It very well could. Employees who object to getting the vaccine would not be eligible for the incentive, which may amount to discrimination that affects their compensation, terms, conditions, rights or privileges.

Keep in mind that the new law also applies in the failure-to-hire context. Public Chapter No. 6 prohibits employers from denying employment to an applicant because the individual objects to the COVID-19 vaccine.[13]

New Cause of Action

Terminated for refusing to get vaccinated? You may be entitled to reinstatement, compensatory damages, and attorney fees.[14] The law took effect on Nov. 12, 2021. So adverse actions that occurred prior to that date are likely not actionable.

Unemployment Claims

Any employee who voluntarily leaves his or her employment because of a mandatory vaccination policy is no longer ineligible for unemployment benefits.[15] This provision applies retroactively.[16] For example, if an employee was terminated on Nov. 1, 2021 (before Public Chapter No. 6 was in effect) for failing to comply with her employer’s mandatory vaccination policy, she likely would have been ineligible for unemployment benefits. However, now, she would now likely be entitled to a “retroactive payment of unemployment benefits.”[17]

Interplay with Federal Requirements

We could dedicate an entire article to discussing how Public Chapter No. 6 may be affected by the OSHA Emergency Temporary Standard (requiring employers with 100 or more employees to mandate vaccines), the CMS mandate, or federal contractor mandate. But at the time of authorship, those requirements have all been stayed by various federal courts (at least for Tennessee employers). Unless those stays are lifted, most Tennessee employers will remain subject to Public Chapter No. 6.

Journalists often end a breaking news report with the words, “this is a developing story.” Employment lawyers don’t get to do that very often. But this is one of those times that we do. Stay tuned.