As employees are increasingly returning to the office, a new amendment to existing Tennessee law regarding vaccination further complicates the landscape for employers concerning COVID-19 vaccine mandates.  See the full text of the amendment here.

Chapter 2 of Title 14 of the Tennessee Code, passed in November 2021 by the Tennessee Legislature, prohibits a private business, governmental entity, school, or local education agency from compelling or otherwise taking “adverse action” against a person to compel proof of having received a COVID-19 vaccination if the person objects to being vaccinated “for any reason.”  See TCA 14-2-102(a).  In other words, a private business in Tennessee cannot take adverse action against a person based on their vaccination status.  As you may recall, Title 14 provided private businesses with an opportunity to request an exemption from this blanket restriction on their ability to require proof of vaccination by requesting the comptroller exclude the entity from the purview of this law.

Changes to Medical and Religious COVID-19 Vaccine Exemptions

Now, the Tennessee Legislature, through the passage of an Amendment effective March 11, 2022, appears to be placing additional requirements on certain employers who received an exemption from the comptroller, as well as assisted-care living facilities, nursing homes and residential hospices. The Amendment requires employers holding a Comptroller exemption and who are not covered employers for purposes of the Centers for Medicare and Medicaid Services (CMS) mandatory vaccination rule to grant medical and religious exemption requests submitted by employees regardless of the burden to the employer.  This right to a religious or medical exemption equally applies to employees of an assisted-care living facility, a home for the aged, a nursing home, or a residential hospice.

Specifically, these employers who require a staff member to provide proof of vaccination or receive the COVID-19 vaccine must grant a medical or religious exemption if:

1. The staff member’s request for a medical exemption is supported by a statement signed and dated by a physician licensed under Title 63, Chapter 6 or 9 of the Tennessee Code Annotated, that the staff member has a condition recognized under generally accepted medical standards as a basis for the medical exemption and provided by the physician under Section 2 of the act; or
2. The staff member attests in writing, including by electronic means, that the staff member has a sincerely held religious belief that prevents the staff member from complying with the requirement in accordance with guidance from CMS.

The definition of “staff member” broadly encompasses employees, as well as any person who is subject to the employer’s vaccination requirement and who is:

1. A licensed, registered, certified, or permitted healthcare provider under Title 63 or 68 in the ordinary course of business or practice of a profession; or
2. A student pursuing a course of study for the purpose of becoming a licensed, registered, certified, or permitted healthcare provider under Title 63 or 68 in the ordinary course of business or practice of a profession; and
3. A person granted permission by a facility licensed under Title 33 or title 68 to be present in the facility to care for or attend to patients or for clinical education.

Requirements for Employers Affected by New Amendment

Employers subject to this Amendment are required to grant or deny the staff member’s exemption request within 10 business days and provide a written explanation for any denial. In the case of a religious request, employers are prohibited from requiring the staff member to provide additional information to substantiate their request beyond their initial submission.  The Amendment further prohibits employers from discharging, threatening to discharge, or reducing the compensation, benefits or hours of a staff member who requests and is granted an exemption.

This Amendment is not retroactive, meaning that employers will not be held liable for any denial of a request for exemption or other act that may violate the new Amendment made before its enactment (March 11, 2022), nor are employers required to change a determination made before March 11.  However, staff members who were terminated due to their refusal to comply with their employer’s vaccination mandate may reapply for employment and may not be further denied employment solely because of their exemption request.

This Amendment does not otherwise eliminate or invalidate a previously granted Comptroller exemption, and exempt employers will remain insulated from the private right of action outlined in T.C.A. 14-6-103 during the period of exemption. However, the attorney general and reporter may bring an action against an employer that violates the requirements outlined in the Amendment to enjoin further violations and recover a civil penalty of $10,000 per violation.