Is this really necessary?
Members of the Tennessee General Assembly will convene for their second special session this month to discuss masks, mandates and anything even remotely related to the COVID-19 virus, but we wonder if the issues are so burning that they couldn't wait until the legislature's regular session early next year.
We understand and sympathize about a pending federal mandate that businesses with 100 or more employees must require vaccinations, about forcing children and employees to wear masks in schools, and about the potential of businesses to require vaccine passports or proof of vaccines, just to name a few issues that might come up in the special session. But we want our lawmakers to be active, not reactive.
Our fear is that legislators will pass some bills in haste, only to have them halted from being implemented or struck down by courts.
Our hope is that members will carefully consider each measure and make sure if they do pass something it will stand up to judicial scrutiny.
We suggested earlier this month that with COVID-19 cases declining a special session beyond the one to approve incentives for the new Ford Motor Company plant in West Tennessee was unnecessary. In addition, Gov. Bill Lee declined to call another such session, saying he knew there were "a lot of conversations about what needs to be done, but I've not been involved in the legislature's conversations around where they're headed."
So legislators did something they'd only done two other times in history — called the session themselves, which necessitated a two-thirds vote by each branch.
Already, workplace bills filed for this session would prohibit public employers from mandating COVID-19 vaccines as a condition of employment, require private employers to document certain information about COVID-19 vaccine mandates for employees, and assign strict liability to private employers who mandate COVID-19 vaccines for employees if an employee has a severe adverse reaction or develops a severe health condition as the result of being vaccinated.
Bills involving schools would establish uniform standards for individuals subject to COVID-19 face covering requirements by prohibiting a local board of education or public school from requiring students to wear a mask and by establishing a process through which a person may seek a reasonable accommodation, and would allow school board candidates to run with a party affiliation, instead of nonpartisan as is the current setup.
Other general virus-related bills would prohibit discrimination based on a person's COVID-19 vaccination status or whether the person has a COVID-19 immunity passport, would prohibit a person from being required to receive a COVID-19 vaccine that is allowed under emergency use authorization or that is undergoing safety trials, and would establish uniform standards for contact tracing of COVID-19.
Of those, we don't see any that couldn't wait until next year, and may not be needed, especially if COVID-19 continues to wane and no variants ramp up infections again.
Undoubtedly, legislators are specifically worried about the Biden administration's vaccine mandate rule, especially with a KFF poll published last month suggesting 30% of unvaccinated workers might leave their jobs rather than comply with a vaccine or testing mandate. But that rule has not been given final review by the Office of Management and Budget, and the percentage of employees who might walk sounds exaggerated to us.
In addition, a number of business groups — including the United States Chamber of Commerce and the National Retail Federation — have asked the White House to delay implementation of the rule until after the holidays for fear of an exodus of employees when they can least afford it.
However, a former Occupational Safety and Health Administration official in the Obama administration told CNBC that businesses would likely be given 10 weeks to comply, as was the case with federal contractors, before employees have to be vaccinated. That would move employees' compliance with the rule past the holiday period and into the new year — nearly to the time when the state legislature would meet again.
We share the concerns of the conservative legislators who voted for the special session about the over-reliance on masks and the implementation of mandates. But we also know that the best way for the virus to go away — or for herd immunity — is for the majority of the population to be vaccinated.
In that sense, then, those who haven't been vaccinated — the very ones the legislators want to protect — are the ones responsible for perpetuating the use of masks and the implementation of mandates in order that everyone else can be protected.
It's quite the conundrum, which is why we urge legislators to consider carefully any bill that comes before them, knowing that overprotection of the unvaccinated in all likelihood prolongs the pandemic.
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