Tennessee's new COVID-19 law bans mask mandates except when pandemic is at deadliest levels

Staff photo by C.B. Schmelter / A sign promoting mask wearing is seen outside of the Trustee's office at the Hamilton County Courthouse on Wednesday, Feb. 10, 2021 in Chattanooga, Tenn.

A provision in a bill awaiting Gov. Bill Lee's signature would bar localities from implementing mask mandates unless local COVID-19 caseloads reach a level Hamilton County has only experienced twice during the pandemic - at the height of the winter and summer surges that killed more than 400 residents in the months that followed.

The law would require the governor to declare a state of emergency and the county to report at least 1,000 new COVID-19 cases per 100,000 residents over 14 days for a mandate to be implemented, according to a copy of the bill.

If these conditions are met and a mask mandate is implemented, the mandate cannot last longer than 14 days. Mandates can be renewed if the requirements are still being met.

The bill passed early Saturday at the conclusion of a special legislative session called for the purpose of reining in mandates and requirements that have been imposed to stop the spread of a pandemic that has killed 16,450 Tennesseans.

A Times Free Press data analysis revealed that the legislation would have significantly limited Hamilton County's ability to impose a mask mandate. The county has passed the 1,000 cases per 100,000 residents threshold twice in the 19 months since the pandemic began.

The county was above the threshold for a nearly seven-week period from December to January during the winter surge that was the deadliest to date. The county was again above the case threshold for a month during the late summer surge caused by the delta variant, which resulted in the county's highest level of coronavirus-related hospitalizations to date and stressed local hospitals to the brink.

Hamilton County's mask mandate went into effect on July 10, 2020, and was lifted April 28, 2021. At the time it was implemented, county Mayor Jim Coppinger - a Republican - described the move as "the right thing to do."

If the new law passed by Tennessee legislators had been in effect then, Coppinger would not have been able to implement the mandate. In July 2020, Hamilton County was averaging between 250 and 450 cases per 100,000 residents, less than half of the figure needed to meet the state's requirements.

Adam Kleinheider, a spokesperson for Lt. Gov. Randy McNally, said in an email that the GOP-led General Assembly determined the threshold calculation in consultation with staff.

"It was designed to strike a balance between public health and personal freedom," he said.

Coppinger said people ask elected officials to step in and help when people are dying, such as when multiple people are killed at a dangerous intersection. Last month, a collective asked for government support for a violence intervention program after a series of deadly shootings on Grove Street that killed two women and injured five others.

"But with the pandemic, it was like, 'Don't do anything. I want my liberties.' Well, we all respect everybody's liberties," Coppinger said. "But when people are dying, I mean, I just felt like people had to step in, to try to do something, people that are in leadership roles. And that's what leaders do, as you well know. They make the tough decisions and have to live with them."

Hamilton County was the only county in the region with a face-covering requirement, while the majority of patients hospitalized in local hospitals were from outside the county.

Health and science experts say that COVID-19 mitigation measures should be implemented much earlier than the new law would allow.

Dr. Josh Santarpia, a professor of pathology and microbiology at the University of Nebraska Medical Center who studies how COVID-19 spreads, said prompt universal masking is needed as community transmission accelerates in order for the intervention to be most effective.

"Once it's already circulating pretty heavily and you start getting high caseloads, it gets a lot harder to wrangle it back in, because you've got so many people that are spreading," Santarpia said, adding that reticence about mask wearing in general makes it even more difficult to control the spread.

"You have so many people who are not following it when they're not being watched that you wind up with continued spread, regardless of your implementation," he said.

Globalepidemics.org, a website produced by Brown University's School of Public Health, features a widely cited framework for assessing a community's COVID-19 risk levels that was developed by a group of experts, including epidemiologists, public health experts, political scientists, data analysts and economists.

Risk levels are graded by color, with green representing the lowest risk, followed by yellow, then orange and red as the highest-risk category. Communities classified as green and yellow need far less COVID-19 mitigation measures, while orange and red communities should implement rigorous measures to control the spread.

"Orange" communities are those with a seven-day rolling average of 10-24 new daily cases per 100,000 people, while red communities have reached a "tipping point" of 25 or more new daily cases per 100,000 people.

According to the framework, most Tennessee counties are currently classified as yellow or orange risk, while Grundy (25.5), Decatur (26.9), Benton (27.4), Campbell (28.7), Greene (29.4), Union (30), Johnson (53) and Scott (57.6) counties are all red.

The bill calculates the case rate using confirmed and probable cases of COVID-19. A case is considered probable if someone displays COVID-19 symptoms after coming into close contact with someone with a case that has been confirmed via a positive test result.

Public health experts have cautioned that since not everyone with COVID-19 gets tested, caseloads should always be considered an undercount. Increasingly, people are turning to at-home tests or opting not to get tested as free testing opportunities are harder to find and some health insurance companies no longer cover the service.

Santarpia said there are few "one-size-fits-all answers" for controlling COVID-19, and factors other than case levels should be used to determine policies. A community's vaccination rate is key, he said.

"Even though people are getting vaccinated, we're still seeing spread, and it's largely among the unvaccinated," Santarpia said. "If you have a high vaccination rate, have relatively low case rates, maybe a universal mask mandate isn't absolutely necessary in your community, but you should be watching it."

Tennessee is the eighth least vaccinated state in the country. As of Wednesday, 55% of Tennesseans were fully vaccinated, and rates vary widely by county.

Contact Elizabeth Fite at efite@timesfreepress.com or follow her on Twitter @ecfite.

Contact Wyatt Massey at wmassey@timesfreepress.com or 423-757-6249. Follow him on Twitter @news4mass.