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Staff Photo by Robin Rudd / Gov. Bill Lee speaks at the 42nd Annual Chattanooga Area Leadership Prayer Breakfast at the Chattanooga Convention Center on October 26, 2021.

NASHVILLE — A far-reaching effort by Tennessee Republican lawmakers to rein in COVID-19 mask mandates and vaccine requirements is now state law after being signed Friday by Gov. Bill Lee.

The Republican governor had told reporters Wednesday that he intended to sign House Bill 9077/Senate Bill 9014 despite concerns raised by the state's three top business associations, local governments, school boards, disability advocates and others.

The measure drew an immediate legal challenge from eight disabled students across Tennessee saying the ban on mask mandates in schools is unconstitutional and violates federal laws protecting disabled students, The Tennessean reported.

Republican House Speaker Cameron Sexton, who pushed for the special session to address COVID-19 mandates, celebrated Lee's signing of the measure on Twitter.

"A big win 4 upholding the constitutional rights of all citizens! Proud that we protected parental rights & the ability of Tennesseans to make health decisions free of government intrusion & coercion while also drawing a line in the sand against Biden's unconstitutional overreach," Sexton tweeted.

Speaking with reporters on Wednesday, Lee — a businessman whose refusal to call fellow Republicans into the special session forced them to call the session themselves — defended his decision to sign the main COVID-19 bill.

"I think most businesses don't want the intervention that was delivered first by the federal government," Lee told reporters. "We had a federal government who required businesses against their will to require their employees against their will to make a personal health decision which is an egregious overreach by the federal government."

Other bills signed

— SB9012/HB9075 decreases the length of a governor’s declared state of emergency from 60 to 45 days, although the governor can still sign a new order extending it.

— SB9009/HB9072 changes current law with regard to local, nonpartisan school board races to allow county political parties to decide whether they will field party candidates. Many Republicans have said partisan school board elections will make local school boards more responsive to those in the party base who oppose mask mandates and other public health measures.

— HB9071/SB9008 allows the state attorney general to petition courts to appoint a special prosecutor to bring charges in cases where a locally elected prosecutor “categorically” refuses to prosecute a case without considering the facts on a case-by-case basis. The law is aimed at Davidson County’s elected prosecutor, Democrat Glenn Funk, who among other things declined to enforce a Lee executive order requiring parent opt-outs for any local school board mask mandates. Funk said he would not intervene to make children unsafe.

And that, Lee added, "is what's created the need to push back against that federal mandate. I think business owners understand that. They see there is a situation created by the Biden administration that's untenable for businesses. It comes at the worst time for our country, to lay workers off at a time when we have rising inflation and workforce challenges already"

Rep. Yusuf Hakeem, D-Chattanooga, told the Times Free Press in a Friday phone interview that he considered the governor's decision disappointing.

"By signing this bill, my view is the governor is making himself complicit in undermining guidelines that have been put forth by the Biden administration which aim to put as a priority the health and safety of the average citizen in the state of Tennessee and our workforce," he said.

"The governor is making himself part of a national effort to create as much chaos as can be put forward by the Republican Party to undermine whatever efforts. I really saw the governor as above the shenanigans we have in politics. None of us are perfect. In this circumstance, he's a great disappointment."

The measure cleared the GOP-controlled General Assembly on Oct. 30 on a largely party-line vote.

Here's what it does:

 

Mask requirements

The law bars governmental entities and public schools from mandating COVID-19 face masks or coverings unless "severe conditions" arise.

The law defines "severe conditions" as the governor having declared a state of emergency during conditions in which there are at least 1,000 cases of known infections per 100,000 people over a 14-day period. It's a high standard, having occurred on just two occasions in Hamilton County during the entire pandemic. Mask requirements can be extended by 14-day periods depending on the severe conditions remaining.

While the law affects the state's 147 public school districts, it doesn't apply to private schools — something Democrats said would create a two-tier school system in which private schools have the tools to safeguard health and public schools do not.

Even if a public school mask mandate meets the standards of the new law, a school cannot require mask usage if a person provides documentation from a health provider that wearing a mask might prove medically harmful to the person. And there is another exemption for someone who objects to wearing a face mask because of his or her "sincerely held" religious beliefs.

Public schools would be required to pay for masks and the law mandates the coverings are to be N95-grade masks, which are generally more costly.

Businesses and private employers were largely spared from the prohibition against mask mandates after Ford Motor Co., which is building a $5.6 billion electric truck assembly and battery plant in West Tennessee, raised objections, as did Volkswagen, which has a plant in Chattanooga, and General Motors, which has a production facility in Spring Hill.

Vaccines

In addition to blocking state and local governments from enacting vaccine mandates, the law also seeks to prohibit private businesses and private employers in most instances from mandating vaccinations or requiring proof of them from employees or customers.

It also attempts to prohibit them from taking any adverse action against a person for declining to show proof of a COVID-19 vaccine.

Federal contractors and those operating federal facilities could apply to the Tennessee Comptroller for a waiver of the vaccination-requirement ban but would have to document their need, such as documenting an impending loss of federal funding for failing to comply with federal vaccine mandates.

It also creates exemptions from the ban on employee vaccination requirements for many health care providers if they participate in Medicare or Medicaid and are subject to federal fines for not obeying. Nursing homes and senior care centers are also exempted from the ban.

Private cause of action

The new law also provides a new cause of legal action for anyone injured by the COVID-19 vaccine as a result of an employer imposing a vaccination requirement.

This puts businesses and nonprofit groups on shaky ground, and they have signaled they aren't happy about it. It also comes in contrast to a special session in the early days of the pandemic, when the legislature shielded businesses from other lawsuits stemming from the pandemic.

Individuals or possibly even a class of plaintiffs can sue to block COVID-19 requirements and also seek to recover compensatory damages and attorneys fees. While the provision does not allow for punitive damages, business groups such as the Tennessee Chamber of Commerce worry that it allows plaintiffs to seek funds for attorneys fees, which could incentivize lawsuits.

Unemployment benefits

Workers who are fired for refusing to follow employers' mask or vaccination requirements could apply for state unemployment benefits, normally not available to employees who resign of their own volition. The provision is retroactive in its application.

The vaccination requirement issue drew statewide attention earlier this year when Chattanooga-based BlueCross BlueShield of Tennessee dismissed 19 out of some 900 public-facing employees who refused to provide proof of vaccination.

Because the new law is retroactive, the BlueCross employees and those in similar situations are now eligible to seek unemployment benefits, depending on the particulars of their departure.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow him on Twitter @AndySher1.

 

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