November 2, 2021
HB9077/SB9014 Transmitted to Governor Lee for Action
Tennessee businesses – with few exceptions – will no longer be able to ask employees whether they have received COVID-19 vaccinations, but they can still require them to mask up in the workplace.
That’s the result of a whirlwind special session that debated issues surrounding more than 80 bills over two days before adjourning in the early morning of Saturday, October 30.
Original legislation would have banned all private and public employers from requiring vaccines or masks of their employees and customers.
The final version contains an exception for businesses and governmental entities that risk losing federal funding without a vaccine mandate if they apply for a waiver from the Tennessee Comptroller of the Treasury. The waiver process has yet to be announced.
Likewise, airport authorities, health care providers that receive federal Medicare or Medicaid dollars, and long-term care facilities can require that employees be vaccinated. Performance venues can ask patrons for proof of a negative COVID test, and patrons can use vaccination status as evidence – a semantic change that differs little from current practice.
Governor Bill Lee has not indicated whether he will sign the bill or let it become law within 10 days without his signature.
The Tennessee legislation will likely put the state in conflict with soon-to-be released OSHA rules and President Biden’s Executive Orders that mandate employee vaccines and testing requirements for a wide range of employers who employ more than 100 people.
What impact the conflict with federal rules on the state’s administration of OSHA rules remains to be seen. Tennessee’s fine structure is lower because the state enforces OSHA rules, and businesses generally perceive the state agency as fair and helpful.
Even strong backers of the state legislation acknowledge that litigation is likely.
Violations of the state law could result in employers losing state Economic and Community Development grants and tax credits, although employers would be given an opportunity to remedy violations before the suspension of state funds.
Employers who require vaccines could also face lawsuits from employees, as COVID-19 liability protections the Legislature approved in 2020 were amended to exclude injuries or adverse actions resulting from mandated vaccines. Employees who are placed on unpaid leave because of their unvaccinated status will be able to collect unemployment benefits.
The so-called omnibus bill – sponsored by Lt. Governor Randy McNally and House Speaker Cameron Sexton – was approved 22-4 in the Senate. Seven senators were absent or abstained. The House voted 58 to 22 to approve, with 19 members absent or abstaining. Among the Knox County delegation, Senator Richard Briggs, Representative Eddie Mannis, and Representative Gloria Johnson voted “no.” Representative Sam McKenzie was absent or abstained.
Other provisions in the bill:
- Forbids public schools from requiring masks unless number of COVID cases reaches a certain threshold over a 14-day period. The state, for the most part, only hit that standard in December 2020. Private schools are not impacted by the legislation.
- Gives the state health commissioner the sole authority to set quarantine guidelines and public health restrictions.
- Creates the opportunity for partisan school board elections.
As the bill hasn’t been signed yet, the Chamber will continue to monitor both its progress and the federal-level mandates, and work with our investors and partners across the state in seeking to eliminate conflicts and confusion for the Tennessee business community.