Nov. 1, 2021 — The Tennessee General Assembly on Oct. 27 gaveled in its special session to discuss COVID-19 related topics. The session started with 82 House bills and 86 Senate bills, but House and Senate leadership pieced together the different bills to make an omnibus bill — HB9077/SB9014.
After an intense three days, the House and Senate adjourned at approximately 1:38 a.m. Saturday morning having passed wide-ranging COVID-related legislation.
Although publicly opposed by the Greater Memphis Chamber, the Tennessee Chamber, NFIB, and almost 30 other business trade associations, HB9077/SB9014 is headed to Gov. Bill Lee for his consideration. Gov. Lee recently noted he is "evaluating each piece of legislation to ensure we push back on harmful federal policies and do right by Tennesseans."
A number of trade associations and businesses have openly expressed frustration with how rushed and lacking in transparency the amendment review process was ahead of committee votes. Additionally, House and Senate committees did not allow testimony from either supporters or opponents.
SUMMARY OF HB9077/SB9014
- Proof of Vaccination: An employer may not require or compel proof of a COVID-19 vaccination. A private business, government entity, school, or local education agency cannot compel proof of COVID-19 vaccination or take adverse action against a person who declines to do so for any reason. Proof of COVID-19 antibodies may be used to gain admission to a place of entertainment.
- Private right of action: Any business that violates the vaccine or adverse action protocols included in the act will be subject to lawsuits.
- Unemployment benefits: If someone voluntarily leaves a place of employment as a result of an employer’s COVID-19 policy, they will be eligible for unemployment benefits. This section also applies retroactively if someone has recently left their job.
- Federal COVID-19 Mandates: The state shall not enforce federal COVID-19 countermeasures. “Except funding for emergency rules already in effect and until the emergency rule expires, public funds of this state, or any political subdivision of this state, shall not be allocated for the implementation, regulation, or enforcement of any federal law, executive order, rule, or regulation that mandates the administration of a COVID-19 countermeasure.”
- Quarantine: The state commissioner of health now has the sole ability to determine quarantine guidelines for COVID.
- Masking in Schools: Public schools and governing bodies of schools shall not require a person to wear a mask. Severe conditions may allow for masks on a limited basis for a maximum of 14 days.
- Masking in Government Buildings: Government shall not mandate masks to access government facilities or services. Government employers shall not require an employee to wear a mask except for in severe conditions. These mandates under severe conditions shall expire after 14 days. Government shall allow exemptions on masks for medical conditions and religious beliefs.
- Enactment and sunset: The legislation will be active upon becoming law, raising urgent concerns that many employers will be unaware or unprepared to comply. The law will terminate, unless renewed, in July 2023.
- Extension of the 2020 COVID Liability Business Protection Act: At the request of the Tennessee Chamber and others, legislators agreed to extend COVID-19 liability protections for businesses to July 1, 2022.
Initially proposed but not included in the final version of the bill
The advocacy of the Greater Memphis Chamber and our partners with other chambers and business associations from across the state led to the following changes and adjustments from original iterations of this legislation.
- Mask mandates in businesses: In the early versions of legislation, businesses would not have been allowed to require masks be worn by customers, visitors, and employees.
- Testing requirements: Early iterations of the legislation placed limits or bans on the ability and frequency businesses required employee testing for COVID-19 with this state provision leading to automatic federal noncompliance.
- Noncompliance of federal contractors: The Chamber worked to ensure the final legislation includes an exemption for companies that are federal contractors. Companies can apply for an exemption through the Tennessee Comptroller of the Treasury.
- Penalties: Original text included provisions stating that businesses would be penalized by losing state tax credits, state incentives, and state contracts if found out of compliance. It also included provisions that would allow for clawbacks to retroactively collect incentives that had been awarded in the past. This would have created unprecedented overreach and sent clear anti-economic development signals. This was removed to address business concerns.
- OSHA state affiliate status: Original language could have threatened Tennessee's state-operated OSHA plan. Federal officials have noted that if states do not adopt recent ETS amendments, there is a risk to federal OSHA taking over. This was removed due to concerns raised by businesses.
Media requests: Ryan Poe, Director of Communications, Greater Memphis Chamber.
