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COVID-19 bill signed into law

By Tate Davis
Freelance Writer

“To be, or not to be, that is the question.” Interpreting the latest guidance on masking and vaccination requirements in Tennessee is somewhat akin to reading Shakespeare in a high school English Literature class, with no Cliffs Notes study guide available. Tennessee Governor Bill Lee signed a new law on Friday, November 12, purports to immediately limit how government and businesses approach COVID-19 masking and vaccination policies.
Private businesses, private schools, and correction facilities can require masks. In contrast, most public entities, including schools, are prohibited from requiring masks except in very limited circumstances. The law generally prohibits government and businesses from requiring proof of COVID-19 vaccination.
The law conflicts with President Joe Biden’s Executive Order requiring many large employers to be vaccinated before January 4, 2022, or face onerous testing protocols. In a decision reaffirmed on Friday, November 12, the Fifth Circuit Court of Appeals ordered the federal government to halt the implementation of Biden’s vaccine mandate. Tennessee is not located within the Fifth Circuit’s jurisdiction.
Tennessee Republicans cited the federal vaccination mandate as the reason they called a three-day special legislative session that ended with the law signed by Lee on Friday.
Business groups are already calling for changes when legislators return to Nashville in January. The Tennessee Chamber of Commerce and Industry and the National Federation of Independent Business of Tennessee say Tennessee’s new law puts businesses at risk of being sued in the face of conflicting state and federal vaccination requirements.
The Tennessee Comptroller of the Treasury’s office is tasked with evaluating exemption requests. An application form is already available online. A release issued by the Comptroller on Monday, November 15, stated, “The new law prohibits most Tennessee businesses from imposing a vaccine mandate unless they receive an exemption… Medical providers doing business with federal healthcare programs appear to be one group entitled to exemption. An exemption may be granted by the Comptroller if an applicant can demonstrate that compliance with Chapter 2 or 6 of the new law would result in loss of federal funding, and an exemption is necessary to conform to a federally awarded or amended contract, subcontract, or postsecondary grant.”
Lee’s prior orders for school districts with mask requirements to allow parents to opt their children out of wearing masks have been in ongoing litigation. Federal courts have blocked those orders in three counties, leaving their masking requirements in place.
Under this new law, individual public schools may only require masks if their county has a rolling 14-day average of 1,000 positive COVID-19 infections per 100,000 residents. No Tennessee county currently meets that threshold. Where the threshold is met and an individual school issues a mask mandate, the new law would only allow the mandate to remain in effect for 14 days.
Lee also issued Executive Order 92 on Friday, which cites the new law and says it “negates the need” for the mask exemptions at the heart of the cases currently in litigation. On Sunday, a federal judge in Nashville temporarily blocked the new law in the three counties where lawsuits were underway over exemptions from school mask mandates. For now, mask mandates at those schools remain in place.
Otherwise, public school mask mandates would be limited, with exemptions for medical and religious reasons required even where a mandate is permitted. Private schools may enforce mask mandates.
The new law also purports to force hospitals to allow at least one uninfected, asymptomatic family member to visit a COVID-19 patient. Although some officials reportedly intended that provision to apply only to end-of-life situations, the law, as passed, lacks such a distinction.
Many large employers face continuing uncertainty. Implementation of the federal vaccination mandate continues in Tennessee while this new state law prohibits some of the same employers from requiring vaccination.
As Shakespeare might say, “And nothing is, but what is not.”