Tennessee COVID-19 Special Session Wraps

At 1:35 a.m. on October 30, the Tennessee General Assembly adjourned its COVID-19-focused extraordinary session. Out of over 80 bills filed, only a handful passed both chambers. Despite that low figure, the effects are significant and, to a degree, still to be fully realized as the legislation awaits the signatures of both houses’ speakers and the governor.

Details of the COVID-19 Omnibus Bill

The most significant piece of legislation, which was dubbed the “COVID-19 Omnibus” bill (HB9077/SB9014) due to its many changes relevant to the current pandemic, was decided in a conference committee that met to resolve the differences between the House and Senate’s versions. As originally drafted, this legislation sought to prevent any employer (with few exceptions) in Tennessee from requiring vaccinations, masks, or proof of vaccination. After the business community –  including the Tennessee Chamber, Business Roundtable, NFIB, Tennessee Trucking Association, Ford Motor Co. and numerous other companies and organizations – launched strong opposition to this legislation, it was amended significantly to remove several businesses out of its purview.

As amended, HB9077/SB9014 includes the following provisions:

• A governmental entity cannot require face coverings as a condition to enter its facilities or receive its benefits unless severe conditions exist. Severe conditions are defined as a state of emergency for COVID-19 that the governor declares and a county must have a rolling 14-day average COVID-19 infection rate of at least 1,000 new known infections for every 100,000 people.
• Private businesses may decide their own mask policies. A private employer can mandate the vaccine but cannot require proof of it. Additionally, no adverse action may be taken by any employer against an employee who fails to provide proof of a vaccine. The definition of “adverse action” seemingly is broad enough to prohibit employers from treating vaccinated and unvaccinated employees differently for purposes of mask-wearing at work, although not expressly stated.
• Healthcare providers enrolled in Medicare or Medicaid, long-term care facilities, private residences, correctional facilities, and airport authorities are exempt and can continue to require masks and vaccines.
• Private schools may require masks but cannot require proof of COVID-19 vaccination.
• K-12 public schools cannot require masks unless the principal submits a written request to the school’s governing body asking to institute masks, that policy is approved, severe conditions exist, the policy is limited to 14 days, and the school pays for N95 masks for students without using state funds to buy the masks. A school is required “to the extent practicable” to provide reasonable accommodations when dealing with students covered under the Americans with Disabilities Act.
• Public universities will not be able to require masks or vaccines until the state’s comptroller deems federal funding is otherwise in jeopardy.
• Large-scale entertainment venues can no longer require proof of vaccination but may require a negative test or an antibody test. They may also accept voluntarily provided proof of vaccination as an alternative to a test.
• The General Assembly expressly opened the door to retroactive and, in some cases, prospective unemployment benefits to employees who were fired or resigned due to vaccine refusal.
• The authority to issue a quarantine order will now reside solely with the commissioner of the Tennessee Department of Health. A person must test positive to be quarantined. A local health entity or official, mayor, governmental entity or school does not have the authority to quarantine a business or person for COVID-19.
• Regarding treatment options, healthcare professionals can use independent judgment to prescribe monoclonal antibody treatments, as opposed to talks of state-issued patient prioritization.
• The Mature Minor Doctrine will not extend to a minor seeking the COVID-19 vaccine. Parental consent will be required unless the provider suspects the minor is being abused or neglected, as defined in Tennessee law.
• The so-called “Right Not to Die Alone” is also present. A hospital shall not restrict a patient from having at least one family member present with the patient during the stay in the hospital as long as the family member tests negative for COVID-19 and is not exhibiting symptoms of COVID-19 or another virus or communicable disease.
• The legislation specifically notes that COVID-19 illness is not compensable for the purposes of Tennessee’s Workers’ Compensation program.
• A new private right of action limited to compensatory damages and reasonable attorney fees was established for a violation of the legislation. It does not mention the inclusion of economic or punitive damages.
• If a Tennessee business, governmental entity or school would lose federal funding due to compliance with this legislation, an exemption may be requested and granted by the Tennessee comptroller.

The legislation terminates on July 1, 2023. The 2020 COVID-19 Liability Protection Act for businesses was extended under this legislation to July 1, 2022. However, the act was amended to exclude vaccine “injuries” or adverse reactions allowing possible litigation in those instances against employers.

Additional Highlights from Special Session

Other highlights of the three-day special session include the following legislation:

• A bill allowing partisan school board elections was successful. Local parties will nominate candidates by traditional primary methods. It is largely expected that nearly all, if not all, school boards will have partisan candidates in the near future.
• The General Assembly also gave the state attorney general the ability to appoint a district attorney general pro tem should a district attorney general “peremptorily and categorically” refuse to prosecute a criminal offense.
• The timeframe between gubernatorial executive order issuance was reduced from 60 to 45 days. This is seen as a measure that will placate a segment of members eager to rebuke the governor for issuing orders they disagree with without materially affecting his authority.
• Also, during a pandemic, the governor has exclusive authority to issue executive orders to county health departments, including the now-famous six that operated with different shades of independence to this point.

Here is a link to a full report of the bills filed during the special session, as well as the conference committee report for the “COVID-19 Omnibus” bill.  For a look at who voted for and against this legislation, here are links to the breakdown for the House and Senate.

If you have any questions about any of the new Tennessee legislation, please contact the authors.