Tennessee legislature rolls back COVID-19 regulations

The third special session of the 112th General Assembly convened on Wednesday afternoon and adjourned early Saturday morning.  The special session saw the introduction of 86 bills in the Senate and 82 in the House and nearly 60 resolutions.  Many of these bills were deferred, withdrawn, incorporated into other pieces of legislation or defeated.  Following two full days of committee meetings and floor sessions, the General Assembly adopted 7 bills and one joint resolution. The seven bills adopted were included in a nine-bill package introduced by Lieutenant Governor McNally and House Speaker Sexton. 

The joint resolution adopted during the special session is summarized below:

  • SJR9005 (McNally) – This joint resolution condemns any attempt by the federal government to enforce an unconstitutional COVID-19 vaccination mandate and urges the Tennessee AG to initiate or intervene in civil actions on behalf of Tennessee against the federal government with respect to implementation or enforcement of any federal mandate relating to vaccination or testing.  This is aimed at suggesting and bolstering a potential legal action related to existing regulations concerning federal contractors and anticipated OSHA regulations affecting employers with 100 or more employees.

Summaries of the key provisions of the bills adopted during the special session follows:

  • SB9007 (McNally) / HB9070 (Sexton) -- Appropriates funds sufficient to pay costs associated with conducting special session.
  • SB9008 (McNally) / HB90701 (Sexton) -- Allows the attorney general to petition the Tennessee Supreme Court to appoint a district attorney general pro tem to handle criminal cases, if the sitting district attorney general categorically refuses to prosecute all instances of a certain criminal offense without regard to facts or circumstances.   It has been reported that at least one DA has publicly suggested they will not use their limited resources to prosecute what they have determined to be lesser offenses, such as possession of a small quantity of an illicit drug.  
  • SB9009 (McNally) / HB9072 (Sexton)– Authorizes partisan elections for school board members.  Provides that if the county primary board of either political party chooses to conduct school board elections on a partisan basis, then a person seeking election to the school board may campaign as the nominee or representative of a political party and political parties may nominate candidates for the board by a method authorized under party rules. 
  • SB9010 (McNally) / HB9073 (Sexton) – Reduces the amount of collateral required to be pledged to secure public deposits from 100% to 90% of the value of the deposit.   Also provides that cash is an eligible form of collateral.   This is intended to respond to concerns raised by bankers regarding their ability to receive significant local government deposits associated with ARPA.  
  • SB9012 (McNally) / HB9075 (Sexton) – Reduces the number of days that a state of emergency may exist under an executive order or proclamation from 60-45 days.   The effect of this bill is to require orders or proclamations to be re-issued every 45 days rather than 60, in the event of an ongoing state emergency
  • SB9013 (McNally) / HB9076 (Sexton) – There was conflict between the versions of bills approved by the Senate and House relating to county health boards, which required the houses to work out an agreement in a conference.  Pursuant to this conference, the governor has exclusive authority to issue executive orders and health directives in the event of a pandemic.  Accordingly, the governor's orders and directives supersede any directive or order that may be issued by the department of health, local health boards, county mayor or other officials during a pandemic.  The agreement also provides that the directors of each county health board are to be appointed by the commissioner of health and that the appointment will come from a slate of names to be prepared and submitted by the county mayor.  The agreement further provides that the county mayor, in consultations with the director of the county health director, retains the authority to issue any orders necessary to protect the health and safety of residents whenever the state is not operating under a state of emergency as a result of a WHO-declared pandemic.
  • SB 9014 (McNally) / HB9077 (Sexton) – The Senate and House passed differing bills addressing public and private vaccines and masking requirements.  The two houses reached an agreement in the overnight hours that provides for the following:

- Prohibits a governmental entity from mandating a person receive a vaccination. Current law already precludes mandating vaccines by ordinance but the bill’s language goes further to bar governmental entities from imposing requirements on employees.  For purposes of this provision, “governmental entity” is defined as state department, municipality, public K-12, public child-care agency and public postsecondary school, utility district, building authority, housing authority, emergency communications district, development districts, and county health boards.

- Prohibits a private business or school from requiring proof of vaccination to access facilities or to receive products or services

- A governmental entity, school, LEA or private business may not require or take any adverse actions against a person to compel they provide proof of vaccination, if that person objects to receiving a COVID-19 vaccine for any reason.  However, it appears that it may be permissible to require a person to produce negative test results.

-- Provides that allowing persons to voluntarily offer proof of vaccination, proof of COVID-19 antibodies or a negative test in order to gain admission to an entertainment venue is permissible under the legislation.

-- Prohibits a governmental entity from requiring employees to wear a mask or require the public to wear a of mask to enter facilities or to receive services, unless the governor has declared a state of emergency for COVID-19 and the county has an average rolling 14-day infection rate of at least 1,000 new known infections for every 100,000 county residents.  If these conditions are met, then a mask requirement may be imposed but only for 14 days.  If conditions still exist after the 14 days have elapsed, then the requirement may be extended for another 14 days.  Includes exemption for medical or religious reasons.  This provision does not apply to state prisons or local jails.

-- Prohibits public K-12, postsecondary and child care agencies from requiring the wearing of a mask while on school property, unless the governor has declared a state of emergency for COVID-19 and the county has an average rolling 14-day infection rate of at least 1,000 new known infections for every 100,000 county residents.  Further provides that, if these conditions are satisfied, then the principal of a school must submit a written request to the school board requesting approval of a policy requiring the wearing of mask on school property.  Such a policy must be considered and issued on a school-by-school basis and the school board may not issue a system-wide policy.  Such policies may only be enacted for a period of 14 days and may only be renewed for another 14 days, if all conditions continue to exist.  If a mask requirement is adopted for any school, then children 12 and under must be provided N95 masks. A student, or that student’s parents or guardians of minors, may request reasonable accommodations pursuant to the ADA, if that request is submitted in writing to the principal.   If any school imposes a mask requirement outside of this process, then the LEA may have state funds withheld.  This provision does not apply to private K-12 schools or private postsecondary schools.

-- Provides that a person that leaves a job because their employer requires employees to receive a vaccination are eligible for unemployment benefits dating back to the time of the employee’s departure or separation.

-- Establishes that the commissioner of health is the only one that may establish quarantine guidelines that are applied to any person or that govern the closure of a school or private business. 

-- Grants healthcare providers ability to determine whether to recommend, prescribe, offer or administer monoclonal antibodies to a patient, even if this action is contrary to any guidance or advice offered by any governmental entity.

-- Requires healthcare providers to obtain written consent from a parent or guardian before administering a COVID-19 vaccine to a minor.

-- States that any disciplinary action taken against a medical provider by a health board that is related to that provider dispensing or prescribing medication for COVID-19 must be consistent with a process that is promulgated by rule.

-- Continues the liability protections adopted in 2020 that afford governmental entities, businesses and individuals against claims of loss, damage, injury or death arising from COVID-19, unless a claimant proves by clear and convincing evidence that the loss, injury, damage or death was the result of gross negligence or willful misconduct.

-- Prohibits the use of any state funds, personnel or property as well as any funds, personnel or property of a municipality, county, utility district, building authority, housing authority, emergency communications district, county board of health or development district to implement, regulate or enforce any federal law, executive order, rule or regulation that imposes requirements relating to masking or vaccinations.  This prohibition does not apply to any emergency rules in effect as of the effective date. 

-- The bill also establishes a process by which any public or private entity may obtain an exemption from the bill’s provisions regarding the imposition of any requirement related to wearing of masks or receipt of the COVID-19 vaccine.  If a public or private entity’s compliance with this legislation would result in a loss of federal funds received pursuant to a federal contract, subcontract or postsecondary grants, then that entity may submit a written request for exemption to the comptroller for approval.

-- Preserves the right of any person to bring legal action against a public or private entity to pursue injunctive relief and to recover compensatory damages and attorney’s fees, if that public or private entity violates any provisions of the bill relating to the wearing of masks or receipt and verification of vaccination.