The federal government says healthcare employers can soon stop requiring employees to get the COVID-19 vaccine. Yes — the U.S. Department of Health and Human Services Centers for Medicare & Medicaid Services (CMS) is sunsetting the requirement that covered providers have staff COVID-19 vaccination policies. Published in the Federal Register on June 5, 2023, CMS’s final rule lifted the COVID-19 vaccination mandate for healthcare workers and will go into effect 60 days later on August 4, 2023. Effective immediately, however, CMS is no longer enforcing COVID-19 vaccine requirements.

Don’t Forget About State Laws and Vaccines

Employers subject to this former federal mandate should also pay close attention to state law. In the Tennessee Code, Title 14 governs public and private employers’ ability to implement and enforce a vaccine mandate. Although these laws were originally set to expire on July 1, 2023, the laws have been indefinitely extended.

With Tennessee Code Title 14 here to stay, employers should keep the following in mind:

• Most Tennessee employers may not compel or take adverse action against employees to compel them to provide proof of receiving a COVID-19 vaccination.
• Governmental entities, schools, and local education agencies in Tennessee may not implement a mandatory vaccination policy.

Until a few days ago, many Medicare or Medicaid providers were excluded from Title 14’s definitions of “governmental entity” and “private business,” as there are carve outs in each for entities subject to valid and enforceable Medicare or Medicaid requirements contrary to the title. Therefore, those providers did not have to comply with Title 14’s provisions that contradicted federal requirements, and — until now — Medicare or Medicaid providers could enforce vaccine mandates, as long as they granted certain legally required exemptions.

Given CMS’s announcement that it is no longer enforcing COVID-19 vaccination requirements, there is no “valid and enforceable” Medicare or Medicaid requirement concerning vaccination that is contrary to Tennessee law. Thus, Medicare and Medicaid providers in Tennessee no longer fit in these carve outs and need to reconsider any vaccine mandate (that would likely be against Tennessee law).

Employer Takeaways

• Tennessee Medicare and Medicaid providers and other governmental entities may need to rethink mandatory vaccine policies, as they might violate state law.
• Many private employers in Tennessee can still have a mandatory vaccine policy, but they cannot compel an employee to provide proof of a COVID-19 vaccination, making this type of mandate largely ineffective.
• Failure to comply with Title 14 may result in litigation as the code creates a private right of action, allowing employees and members of the public to sue for injunctive relief, compensatory damages, and reasonable attorneys’ fees if they believe they have been injured.