Tennessee Passes Legislation Limiting COVID-Related Rules, Restrictions

After convening for a special legislative session to address COVID-19 countermeasures, the Tennessee General Assembly passed sweeping legislation in the early hours of Saturday morning that limits the authority of public schools, local health departments, government entities, and private businesses to implement COVID-19 related restrictions.

Despite fierce opposition from the Tennessee business community, local school boards, health care providers, and other stakeholders, the legislature enacted House Bill No. 9077 / Senate Bill No. 9014 following lengthy negotiations in a joint conference committee appointed by legislative leadership to resolve the differences between companion bills proposed by each chamber. The wide-ranging legislative package includes the following regulations:

COVID-19 Vaccine Mandates

• Prohibits a governmental entity, school, or local education agency from mandating that a person receive a COVID-19 vaccine.
• “Governmental entity” does not include a healthcare provider enrolled in Medicare or Medicaid that is subject to fines or penalties for non-adherence to federal rules and regulations, an airport authority, or long-term care facility for purposes of the Act.
• Prohibits a private business or school from requiring proof of vaccination as a condition to access the private business's or school's premises or facilities or to receive the benefits of the private business's or school's products or services.
• Prohibits a private business, governmental entity, school, or local education agency from compelling, or otherwise taking adverse action against, a person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.
• Places of entertainment may allow a person to voluntarily provide proof of vaccination or proof of COVID-19 antibodies instead of a negative COVID-19 test in order to gain admission to the premises.
• A person is not prohibited from requiring another person to provide proof of vaccination as a condition to entering that person's personal residence for purposes of providing products or services (e.g. nanny, home health care aid)

Face Coverings in General

• Prohibits governmental entities from requiring a person to wear a face covering as a condition to access the governmental entity's premises or facilities, or to receive the benefits of the governmental entity's products or services, unless “severe conditions” exist and the requirement is in effect for no more than fourteen (14) days.
• “Severe conditions” are defined as: (1) The governor has declared a state of emergency for COVID-19 pursuant to § 58-2-107; and (2) A county has an average rolling 14 day COVID-19 infection rate of at least one thousand (1,000) new known infections for every one hundred thousand (100,000) residents of the county based on the most recent data published by the Department of Health.”
• Prohibits an employer that is a governmental entity from requiring that an employee wear a face covering as a term or condition of employment, or take adverse action against an employee for failing to wear a face covering, unless severe conditions exist at the time the requirement is adopted and the requirement is in effect for not more than 14 days.
• Prohibits a governmental entity from requiring a person to wear a face covering if the person provides documentation from their healthcare provider that wearing a face covering is contraindicated for their health, or if the person objects to wearing a face covering because of a sincerely held religious belief.
• Exception: Private businesses are exempt from this requirement, and may set their own mask policies for employees and customers.

Face Coverings in Schools

• Prohibits schools and school districts from requiring a person to wear a face covering while on school property unless the following conditions are met:
• The principal of a school submits a written request to the school board asking them to adopt a policy requiring all persons on school property to wear a face covering;
• Severe conditions exist, as described above;
• The school board adopts a mask policy on a school-by-school or campus-by-campus basis, and the policy only applies to the school that submitted the written request and the policy is effective for no more than fourteen (14) days;
• The school provides facemasks for individuals twelve (12) and older that meet the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration; and
• The school provides age-appropriate face coverings for individuals under twelve (12) years of age, but over five (5) years of age that provide air filtration similar to the face coverings for individuals twelve (12) years of age and older.

• Prohibits a school from requiring a person to wear a face covering if the person provides documentation from the person's healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person's sincerely held religious belief.
• Prohibits the governing body of a school from using state funds to mandate or require students to wear face coverings in violation of these provisions. If a school's governing body violates the Act, the Commissioner of Education may withhold future distributions of school funds from a local education agency in the amount of the state funds used in violation of the Act, or the Attorney General and reporter may initiate legal proceedings to recover all state funds.
• The above-described provisions do not apply to private schools.

Unemployment Benefits

• Allows persons that voluntarily leave a place of employment on grounds of refusal to receive a COVID-19 vaccine to claim unemployment benefits. This section also allows these employees to collect retroactivepayment if denied benefits on grounds that their separation from employment for failing or refusing to receive a COVID-19 vaccine was insufficient for benefits.

Private Right of Action

• Creates a private right of action for any person injured as a result of a violation the Act for injunctive relief and to recover compensatory damages and reasonable attorneys' fees against an alleged violator. Alleged violators may include, but are not limited to, private businesses, governmental entities, and schools.

Anti-Commandeering

• Except funding for emergency rules already in effect and until the emergency rule expires, prohibits public funds of this state, or any political subdivision of this state, to be allocated for the implementation, regulation, or enforcement of any federal law, executive order, rule, or regulation that mandates the administration of a COVID-19 countermeasure.
• Exception: Allow entities at risk of losing federal funds to issue mask and vaccine mandates, and use public funds for mandates, if they receive approval from the state Comptroller's Office, subject to various conditions.

COVID-19 Liability

• Extends the liability protections afforded in the Tennessee COVID-19 Recovery Act to July 1, 2022. The Act provides protection to health care professionals and facilities, businesses, non-profits, religious organizations, public institutions of higher learning, individuals, and other legal entities from claims arising from COVID-19 unless there is clear and convincing evidence of gross negligence or willful misconduct.
• Vaccine injury or adverse reactions are not included in the liability protections afforded to the entities described above.

Sole Authority of Quarantine

• Grants the Tennessee Commissioner of Health the exclusive power to design quarantine guidelines for:
• A person that tests positive for COVID-19. The quarantine of a person must be lifted if the person receives a negative antigen detection test result or a negative molecular diagnostic test result at any time during the quarantine period; and
• A private business or school for purposes of closing the private business or restricting the operation of the private business for purposes of COVID-19. The quarantine of a business must be lifted as soon as practicable after the commissioner is satisfied that the conditions at the business do not present a serious public health or safety threat with respect to the spread of COVID-19.
• The Act explicitly states that, “A local health entity or official, mayor, governmental entity, or school does not have the authority to quarantine a person or private business for purposes of COVID-19.”

Monoclonal Antibodies and Professional Discipline

• Allows healthcare providers 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.
• Requires licensing boards to develop a set of rules, subject to approval by the Government Operations Committee, if they wish to discipline medical professionals for prescribing COVID-19 treatments.

Mature Minor Doctrine

• Prohibits a healthcare provider from providing a patient who is a minor with a COVID-19 vaccine without first obtaining written consent from the minor patient's parent or legal guardian.
• Exempts this requirement if a healthcare provider, in the provider's independent professional judgment, suspects that the minor may be subjected to abuse, as defined in § 37-1-102, by a parent or legal guardian, or may be a dependent and neglected child, as defined in § 37-1-102.

Enactment and Termination

• Terminates the Act on July 1, 2023, unless renewed by the legislature.
• The Act will take effect immediately upon becoming law.

Other legislation enacted during the special session includes:

• SB 9009/HB 9072: Allows elections for school board members to be conducted on a partisan or nonpartisan basis. If at least one (1) county primary board of a political party decides to conduct school board elections on a partisan basis, then individuals seeking a position on the board of education may campaign as the nominee or representative of a political party. Political parties may nominate candidates for membership on the school board pursuant to rules of the party or by primary election.
• SB 9013/HB9076 : Grants the governor exclusive power to issue executive orders and direct health departments during a pandemic. The Act also transforms the manner in which local health directors in the state's six largest counties are selected.
• Current law, applicable to 89 of the 95 counties, requires the commissioner to appoint county health directors with consent from the county mayor.
• The Act establishes a new, more detailed process that applies universally to all 95 local health authorities. The mayor must nominate three candidates for the commissioner's consideration within 10 days from the commissioner's request for nomination. The commissioner can select someone other than the nominees, but must consult the mayor and offer written explanation before selecting a new candidate.

Governor Lee has not specified his intent to sign the legislation, but recently stated that he is, “evaluating each piece of legislation to ensure we push back on harmful federal policies and do right by Tennesseans.” We will continue to review all special session legislation over the coming days to assess impacts on various industry sectors. HB 9077 / SB 9014, as enacted, may be found here.