Can private employers in Tennessee require employees to be vaccinated against COVID-19?

Plain-English summary

In 2021, as employers across the country debated whether to require COVID-19 vaccination as a condition of employment, the Tennessee General Assembly passed Public Chapter 513, codified at §§ 68-5-116 and 68-5-117. That law prohibited the State and its political subdivisions from requiring any person to be vaccinated against SARS-CoV-2 (or any variant). It did not address private employers. A Tennessee legislator asked the AG whether other Tennessee law nonetheless prohibited private employers from imposing such a requirement.

AG Slatery answered no. The plain text of Public Chapter 513 reaches only government employers. Tennessee's existing employment law generally permits employer-imposed conditions of employment in an at-will state, with specific narrow exceptions for protected conduct (whistleblowing, firearm storage in vehicles). Refusal to be vaccinated is not statutorily protected. The General Assembly could have included private employers in Chapter 513's prohibition; it chose not to. Therefore, state law does not bar private employers from imposing the requirement.

That answers the state-law half of the question. The opinion then turns to the federal-law layer, and it is careful to say that whether and how federal law applies depends on the particular facts. The AG noted that some employees had argued the vaccines' emergency-use-authorization status let them refuse under the FDCA (21 U.S.C. § 360bbb-3, the "option to accept or refuse" an EUA product), but that courts in other jurisdictions had rejected those challenges, reading that provision to govern the medical providers administering the vaccine rather than employers (Valdez v. Grisham; Klaasen v. Trustees of Indiana Univ.; Bridges v. Houston Methodist Hosp.). The opinion adds that other federal law, including the Occupational Safety and Health Act and the National Labor Relations Act, along with any collective bargaining agreements executed under them and any individual employment contracts, could preclude a particular employer from requiring vaccination, "subject to appropriate exceptions, such as exceptions for medical reasons." The opinion does not discuss religious accommodation or the Americans with Disabilities Act.

What this means for you

If you run a private business in Tennessee

Under this opinion, Tennessee law did not prevent a private employer from making COVID-19 vaccination a condition of employment. The opinion located the practical limits in federal law (it pointed to the Occupational Safety and Health Act and the National Labor Relations Act), in any collective bargaining agreements executed under those laws, and in individual employment contracts, with any requirement "subject to appropriate exceptions, such as exceptions for medical reasons." Because the law in this area has shifted since 2021, confirm current state and federal requirements before drafting or enforcing a policy.

If you work for a private Tennessee employer with a vaccination requirement

The opinion concluded that state law gave private-sector employees no Tennessee-specific exemption and that refusing vaccination was not protected conduct under Tennessee's narrow at-will exceptions (such as § 50-1-304 for whistleblowing and § 50-1-312 for firearm storage). It noted only that federal law, collective bargaining agreements, individual contracts, and medical-reason exceptions might apply in a given workplace. The opinion did not address religious or disability accommodation, so it is not a source on those questions.

If you work for a Tennessee government employer

Public Chapter 513 (as it stood in 2021) prohibited the State and its political subdivisions from requiring COVID-19 vaccination. The statute has been amended and supplemented since 2021; check current Tennessee Code for the live text.

If you are an employment attorney or HR consultant

The opinion is narrow: it sets the state-law baseline for private employers in Tennessee as of October 2021, that Tennessee law did not bar a private mandate. Its federal-law discussion is limited to the FDCA emergency-use-authorization refusal argument (which the cited out-of-state courts rejected), OSHA, the NLRA, collective bargaining agreements, and contracts. Treat it as a starting point for state law and bring current federal authority to bear separately.

Common questions

Q: What did Public Chapter 513 actually do?
A: It prohibited the State of Tennessee and its political subdivisions (counties, cities, special districts) from requiring vaccination against SARS-CoV-2. § 68-5-116 contains the prohibition; § 68-5-117 contains definitions. It did not extend the prohibition to private employers.

Q: Why did the General Assembly limit Public Chapter 513 to government?
A: That is a legislative judgment the AG opinion does not second-guess. The statute as enacted reflected a deliberate choice. The legislature could have extended the prohibition to private employers; the AG opinion treats that omission as significant.

Q: Could employees refuse because the vaccines were only emergency-authorized?
A: Some employees made that argument. They pointed to the FDCA provision (21 U.S.C. § 360bbb-3) giving recipients of an emergency-use-authorization product "the option to accept or refuse" it. The opinion noted that courts in other jurisdictions had rejected those challenges to employer mandates, reading that provision to apply to the medical providers administering the vaccine, not to employers, and holding that the FDCA "neither expands nor restricts the responsibilities of private employers" (Valdez v. Grisham; Klaasen v. Trustees of Indiana Univ.; Bridges v. Houston Methodist Hosp.).

Q: What federal laws did the opinion say could limit a private mandate?
A: The opinion identified the Occupational Safety and Health Act and the National Labor Relations Act, along with any collective bargaining agreements executed under those laws and any individual employment contracts. Whether any of them applied, it said, would depend on the particular facts of the workplace. It also said a mandate would be "subject to appropriate exceptions, such as exceptions for medical reasons." It did not analyze Title VII or the ADA.

Q: Has Tennessee law changed since this opinion?
A: Yes, multiple times. The General Assembly amended Title 14 (and other titles) in 2021-2024 to expand vaccination-related employment protections in some contexts. Anyone making decisions today should consult current Tennessee Code, not rely solely on this 2021 opinion.

Q: Does this opinion cover schools, hospitals, or other licensed entities?
A: It addresses private employers generally. Specific licensed industries may be subject to additional state or federal rules. Schools, hospitals, and licensed care providers should consult industry-specific guidance.

Background and statutory framework

Tennessee is an at-will employment state. Absent a specific statutory protection, an employer may impose conditions of employment, including vaccination requirements, and may discharge employees who do not comply. The statutory protections that limit at-will employment are narrow: § 50-1-304 protects employees who refuse to participate in or remain silent about illegal activity, § 50-1-312 protects employees who store firearms in their vehicles in compliance with § 39-17-1313, and various antidiscrimination statutes prohibit adverse action based on protected characteristics.

None of those protect refusal to be vaccinated as such. The General Assembly considered the vaccine question in 2021 and passed Public Chapter 513 as a limited prohibition on government action. The opinion's core reasoning is that the limited reach of the statute reflects legislative choice: the legislature could have extended the prohibition to private employers and did not.

The federal layer is where the opinion located most of the practical limits. It walked through the FDCA emergency-use-authorization refusal argument (rejected by the out-of-state courts it cited, which read 21 U.S.C. § 360bbb-3 to govern providers administering the vaccine rather than employers), and it named the Occupational Safety and Health Act and the National Labor Relations Act, together with any collective bargaining agreements executed under those laws and any individual employment contracts, as constraints that could apply depending on the facts. The opinion framed any private mandate as "subject to appropriate exceptions, such as exceptions for medical reasons." It did not address Title VII or the ADA.

Citations

• 2021 Tenn. Pub. Acts, ch. 513 (government vaccination prohibition)
• Tenn. Code Ann. § 68-5-116 (codified prohibition)
• Tenn. Code Ann. § 68-5-117 (definitions)
• Tenn. Code Ann. § 50-1-304 (whistleblower protection)
• Tenn. Code Ann. § 50-1-312 (firearm-storage employment protection; cross-references § 39-17-1313(a))
• 21 U.S.C. § 360bbb-3 (FDCA emergency-use-authorization "option to accept or refuse")
• Valdez v. Grisham, 2021 WL 4145746 (D.N.M. Sept. 13, 2021)
• Klaasen v. Trustees of Indiana Univ., 2021 WL 3073926 (N.D. Ind. July 18, 2021), aff'd, 7 F.4th 592 (7th Cir. 2021)
• Bridges v. Houston Methodist Hosp., 2021 WL 2399994 (S.D. Tex. June 12, 2021)

Subject

COVID-19 Vaccination as Condition of Employment Imposed by Private Employers

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2021/op21-16.pdf

Original opinion text

COVID-19 Vaccination as Condition of Employment Imposed by Private Employers
May a private employer require its employees to be vaccinated against COVID-19 as a
condition of employment?
Tennessee law does not prohibit private employers from requiring their employees to be
vaccinated against COVID-19 as a condition of employment. But-depending on the particular
facts and circumstances in any given private employment situation-federal law, as well as
collective bargaining agreements and other employment contractual obligations, may preclude a
private employer from requiring its employees to be vaccinated against COVID-19, subject to
appropriate exceptions, such as exceptions for medical reasons.

1. State Law Does Not Preclude Private Employers from Requiring Employees to be
   Vaccinated Against Covid-19.
   Earlier this year, the Tennessee General Assembly passed legislation that prohibits the State
   and its political subdivisions from requiring any person to be vaccinated or immunized against the
   SARS-CoV-2 virus or any variant of that virus (collectively "COVID-19"). 2021 Tenn. Pub. Acts,
   ch. 513, §§ § § 1, 7 (codified at Tenn. Code Ann. § § 68-5-116, -117). By its express terms, Public
   Chapter 513 applies only to the government. Accordingly, this Tennessee law does not prevent
   private employers from requiring their employees to be vaccinated or immunized against COVID-
   19 as a condition of employment, subject to appropriate exceptions, such as exceptions for medical
   State law governing employment relationships and practices in this State does expressly
   prohibit the termination or discharge of employees who engage in certain conduct,¹ but an
   employee's refusal to be vaccinated is not recognized as protected conduct. When the General
   Assembly passed Public Chapter 513, it could have amended the law to prohibit private employers
   1 For example, Tenn. Code Ann. § 50-1-304 provides that no employee shall be discharged or terminated "solely for
   refusing to participate in, or for refusing to remain silent about, illegal activities," and § 50-1-312 prohibits an
   employer from discharging or taking adverse a ction against its employees "solely for transporting or storing a firearm
   or firearm ammunition in an employer parking area in a manner consistent with § 39-17-1313(a)."
   STATE OF TENNESSEE
   OFFICE OF THE ATTORNEY GENERAL
   October 6, 2021
   Opinion No. 21-16
   COVID-19 Vaccination as Condition of Employment Imposed by Private Employers
   Question
   May a private employer require its employees to be vaccinated against COVID-19 as a
   condition of employment?
   Opinion
   Tennessee law does not prohibit private employers from requiring their employees to be
   vaccinated against COVID-19 as a condition of employment. But—depending on the particular
   facts and circumstances in any given private employment situation—federal law, as well as
   collective bargaining agreements and other employment contractual obligations, may preclude a
   private employer from requiring its employees to be vaccinated against COVID-19, subject to
   appropriate exceptions, such as exceptions for medical reasons.
   ANALYSIS
2. State Law Does Not Preclude Private Employers from Requiring Employees to be
   Vaccinated Against Covid-19.
   Earlier this year, the Tennessee General Assembly passed legislation that prohibits the State
   and its political subdivisionsfrom requiring any person to be vaccinated or immunized against the
   SARS-CoV-2 virus orany variantof thatvirus (collectively “COVID-19”). 2021 Tenn.Pub.Acts,
   ch. 513, §§ 1, 7 (codified at Tenn. Code Ann. §§ 68-5-116, -117). By its express terms, Public
   Chapter 513 applies only to the government. Accordingly, this Tennessee law does not prevent
   private employers from requiring their employees to be vaccinated or immunized against COVID-
   19 as a condition of employment,subjectto appropriateexceptions,such asexceptionsformedical
   reasons.
   State law governing employment relationships and practices in this State does expressly
   prohibit the termination or discharge of employees who engage in certain conduct,1 but an
   employee’s refusal to be vaccinated is not recognized as protected conduct. When the General
   Assembly passed Public Chapter 513, it could have amended the law to prohibit private employers
   1
   For example,Tenn.Code Ann.§ 50-1-304providesthat no employee shallbe dischargedorterminated “solely for
   refusing to participate in, or for refusing to remain silent about, illegal activities,” and § 50-1-312 prohibits an
   employerfromdischargingortakingadverseaction against itsemployees“solely fortransportingorstoringa firearm
   or firearmammunitionin an employerparkingarea in a mannerconsistent with § 39-17-1313(a).”
   from taking adverse action against their employees for refusing to receive a COVID-19 vaccine as
   it has done with respect to other conduct, but it did not do so.²
3. Federal Law Could Preclude a Private Employer from Requiring its Employees to be
   Federal law, though, could preclude a private employer from requiring its employees to be
   vaccinated against COVID-19 as a condition of employment. Whether and to what extent any
   such federal law applies to any given private employer will depend on the particular facts and
   circumstances involved.
   For example, in February 2020, the United States Department of Health and Human
   Services declared a public emergency and instructed the Food and Drug Administration (the
   "FDA") to grant emergency use authorizations ("EUA") for medical devices and interventions,
   including vaccines, to combat the COVID-19 pandemic. See 85 Fed. Reg. 7316-01, 7316-17
   (2020); 85 Fed. Reg. 18250-01, 18250-51 (2020). The FDA then granted three vaccines EUA
   status for individuals sixteen and older: Pfizer-BioNTech and Moderna in December 2020 and
   Johnson & Johnson in February 2021.³
   Faced with impending vaccine mandates following these grants of EUA status, employees
   sought to challenge employer vaccine requirements on the grounds that the Food, Drug and
   Cosmetics Act (the "FDCA") allows individuals to refuse those vaccines that have not been fully
   approved by the FDA. They argued that the EUA status of the vaccines precluded enforcement of
   the vaccine mandates under the FDCA, which provides that individuals have "the option to accept
   or refuse" an EUA product. See 21 U.S.C. § 360bbb-3.
   A number of courts in other jurisdictions have rejected such challenges to employer vaccine
   mandates. See, e.g., Valdez v. Grisham, No. 21-cv-783, 2021 WL 4145746, at 4 (D. New Mexico
   Sept. 13, 2021), appeal docketed, No. 21-2105 (10th Cir. Sept. 15, 2021) (finding that "the option
   to accept or refuse" an EUA product is an informed consent provision which "applies only to
   medical providers" who administer the vaccine) (quoting Klaasen v. Trustees of Indiana Univ.,
   No. 21-cv-238, 2021 WL 3073926, at 25 (N.D. Ind. July 18, 2021), aff' d, 7 F.4th 592 (7th Cir.
   2021). Under this view, private employers who require their employees to obtain a COVID-19
   vaccination from a medical provider and attest that they have been vaccinated may not run afoul
   of the EUA provisions of the FDCA on the theory that the EUA provisions of the FDCA do not
   apply when employers are not "directly administering the vaccine." Id. See also Bridges V.
   Houston Methodist Hosp., No. H-21-1774, 2021 WL 2399994, at *2 (S.D. Tex. June 12, 2021)
   (court rejected hospital employee's claim that since "no one can be mandated to receive
   2 In fact, the legislative history for Public Chapter 513 is replete with statements that private businesses were not
   included in the proposed legislation and would remain unrestricted in their ability to require that their employees be
   vaccinated for COVID-19.
   3 See Centers for Disease Control and Prevention, COVID-19 Vaccination Recommendations,
   The Pfizer-BioNTech COVID-19 vaccine was recently fully approved by the FDA on August 23, 2021. Id.
   2
   from taking adverse action against their employees for refusing to receive a COVID-19 vaccine as
   it has done with respect to other conduct, but it did not do so.2
4. Federal Law Could Preclude a Private Employer from Requiring its Employees to be
   Vaccinated.
   Federal law, though, could preclude a private employer from requiring its employees to be
   vaccinated against COVID-19 as a condition of employment. Whether and to what extent any
   such federal law applies to any given private employer will depend on the particular facts and
   circumstances involved.
   For example, in February 2020, the United States Department of Health and Human
   Services declared a public emergency and instructed the Food and Drug Administration (the
   “FDA”) to grant emergency use authorizations (“EUA”) for medical devices and interventions,
   including vaccines, to combat the COVID-19 pandemic. See 85 Fed. Reg. 7316-01, 7316-17
   (2020); 85 Fed. Reg. 18250-01, 18250-51 (2020). The FDA then granted three vaccines EUA
   status for individuals sixteen and older: Pfizer-BioNTech and Moderna in December 2020 and
   Johnson & Johnson in February 2021.3
   Faced with impending vaccine mandates following these grants of EUA status, employees
   sought to challenge employer vaccine requirements on the grounds that the Food, Drug and
   Cosmetics Act (the “FDCA”) allows individuals to refuse those vaccines that have not been fully
   approved by the FDA. They argued that the EUA status of the vaccines precluded enforcement of
   the vaccine mandates under the FDCA, which provides that individuals have “the option to accept
   or refuse” an EUA product. See 21 U.S.C. § 360bbb-3.
   A numberof courts in otherjurisdictionshave rejected suchchallengesto employervaccine
   mandates. See,e.g., Valdezv.Grisham,No.21-cv-783,2021 WL4145746,at4 (D.NewMexico
   Sept. 13, 2021), appeal docketed, No.21-2105 (10th Cir. Sept. 15, 2021) (finding that “the option
   to accept or refuse” an EUA product is an informed consent provision which “applies only to
   medical providers” who administer the vaccine) (quoting Klaasen v. Trustees of Indiana Univ.,
   No. 21-cv-238, 2021 WL 3073926,at 25 (N.D. Ind. July 18, 2021), aff’d, 7 F.4th 592 (7th Cir.
   2021). Under this view, private employers who require their employees to obtain a COVID-19
   vaccination from a medical provider and attest that they have been vaccinated may not run afoul
   of the EUA provisions of the FDCA on the theory that the EUA provisions of the FDCA do not
   apply when employers are not “directly administering the vaccine.” Id. See also Bridges v.
   Houston Methodist Hosp., No. H-21-1774, 2021 WL 2399994, at *2 (S.D. Tex. June 12, 2021)
   (court rejected hospital employee’s claim that since “no one can be mandated to receive
   2
   In fact, the legislative history for Public Chapter 513 is replete with statements that private businesses were not
   included in the proposed legislationand would remain unrestrictedin theirability to require that theiremployees be
   vaccinated forCOVID-19.
   3
   See Centers for Disease Control and Prevention, COVID-19 Vaccination Recommendations,
   https://www.cdc.gov/coronavirus/2019-ncov/vaccines/recommendations-process.html(last visited October1,2021).
   The Pfizer-BioNTech COVID-19vaccinewasrecentlyfully approved bythe FDAon August 23,2021. Id.
   'unapproved' medicines in emergencies" COVID-19 vaccine mandate was not permissible under
   FDCA and determined that the FDCA "neither expands nor restricts the responsibilities of private
   employers").
5. Other Federal Law, Collective Bargaining Agreements, and Other Employment
   Contractual Obligations May Prohibit Private Employer COVID-19 Mandates.
   In addition, other federal law, collective bargaining agreements, and other contractual
   obligations assumed by a private employer may prohibit a given private employer from requiring
   its employees to be vaccinated. See Vaccination in the Workplace, Practical Law Practice Note
   w-028-8922, 2020 WL 7391418 (2021) (discussing federal laws and their potential impact
   regarding COVID-19 vaccination policies imposed by employers). The Occupation Safety and
   Health Act and the National Labor Relations Act could apply, for instance. See id.; Lee Modjeska
   and Abigail Cooley Modjeska, Federal Labor Law: NLRB Practice § 1:4 (Aug. 2021). If so, there
   may be applicable collective bargaining agreements executed pursuant to these laws that may
   preclude an employer from unilaterally implementing a COVID-19 vaccine mandate. See id.
   Finally, employment contracts or other contractual obligations-other than those imposed
   by a collective bargaining agreement-might exist in a particular employment relationship that
   could prevent the employer from requiring its employees to be vaccinated for COVID-19.
   In sum, Tennessee law does not prohibit private employers from requiring their employees
   to be vaccinated against COVID-19 as a condition of employment. But-depending on the
   particular facts and circumstances in any given private employment situation-federal law, as well
   as collective bargaining agreements and other employment contractual obligations, may preclude
   a private employer from requiring its employees to be vaccinated against COVID-19, subject to
   appropriate exceptions, such as exceptions for medical reasons.
   HERBERT H. SLATERY III
   Attorney General and Reporter
   ANDRÉE SOPHIA BLUMSTEIN
   LAURA T. KIDWELL
   Assistant Solicitor General
   3
   ‘unapproved’ medicines in emergencies” COVID-19 vaccine mandate was not permissible under
   FDCA and determined that the FDCA “neither expands nor restricts the responsibilities of private
   employers”).
6. Other Federal Law, Collective Bargaining Agreements, and Other Employment
   Contractual Obligations May Prohibit Private Employer COVID-19 Mandates.
   In addition, other federal law, collective bargaining agreements, and other contractual
   obligations assumed by a private employer may prohibit a given private employer from requiring
   its employees to be vaccinated. See Vaccination in the Workplace, Practical Law Practice Note
   w-028-8922, 2020 WL 7391418 (2021) (discussing federal laws and their potential impact
   regarding COVID-19 vaccination policies imposed by employers). The Occupation Safety and
   Health Act and the National Labor Relations Act could apply, for instance. See id.; Lee Modjeska
   and Abigail Cooley Modjeska, Federal LaborLaw: NLRB Practice § 1:4 (Aug. 2021). If so, there
   may be applicable collective bargaining agreements executed pursuant to these laws that may
   preclude an employer from unilaterally implementing a COVID-19 vaccine mandate. See id.
   Finally, employment contracts or other contractual obligations—other than those imposed
   by a collective bargaining agreement—might exist in a particular employment relationship that
   could prevent the employer from requiring its employees to be vaccinated for COVID-19.
   In sum, Tennessee law doesnot prohibit private employers from requiring their employees
   to be vaccinated against COVID-19 as a condition of employment. But—depending on the
   particularfactsand circumstancesin any given private employmentsituation—federallaw,aswell
   as collective bargaining agreements and other employment contractual obligations, may preclude
   a private employer from requiring its employees to be vaccinated against COVID-19, subject to
   appropriate exceptions, such as exceptions for medical reasons.
   HERBERT H. SLATERY III
   Attorney General and Reporter
   ANDRÉE SOPHIA BLUMSTEIN
   Solicitor General
   LAURA T. KIDWELL
   Assistant Solicitor General
   Requested by:
   The Honorable Robin Smith
   State Representative
   425 Rep. John Lewis Way N.
   Cordell Hull Building, Suite 644
   Nashville, Tennessee 37243
   4
   Requested by:
   The Honorable Robin Smith
   State Representative
   425 Rep. John Lewis Way N.
   Cordell Hull Building, Suite 644
   Nashville, Tennessee 37243