Covid-19 Special Session Omnibus Analysis

The Tennessee General Assembly Special Session to address Covid-19-related issues began on October 27th with nearly 80 bills filed. In the leadup to the session, Speaker Sexton proposed eight bills that covered numerous topics, such as masking in schools and private businesses, private organization vaccine mandates and partisan school board races. In response to proposed bills, several coalition groups, including the state chapter of the National Federation of Independent Businesses and numerous Chambers of Commerce from across the state, expressed concerns over the impact of the potential new limits on private businesses, schools and public health.

At the beginning of the special session, Speaker Sexton rolled his eight special session priorities into one “omnibus” bill. Representative Jason Zachary carried the omnibus in the House, while Senator Jack Johnson did so in the Senate. The omnibus bill easily passed through the Senate Labor and Commerce, Judiciary, Health and Welfare and Local Government Committees, as well as the newly formed House “Covid-19 Committee”, before it arrived on the House and Senate floor.

On the respective chamber floors is where the omnibus bill first began to hit some snags, with discussion both expressing support as well as concerns about the effects of the bill. As the evening wore on, it became known that the Ford Motor Company reached out to members of the General Assembly to express their concern about the bill, specifically citing masking policies as crucial to their continuous operation throughout the pandemic.

This development led to a proposed amendment to the prospective rule that would have banned private entities from enforcing a mask mandate in their place of business, instead creating a carve out for private businesses and private schools to mandate masks if they so choose. The language between the House and Senate bills also continued to grow in difference, leading to numerous conference committee meetings behind closed doors meant to hammer out those disagreements. Ultimately, with the carve out for masking in private businesses in place, the omnibus bill passed the House 58-22 and the Senate 22-4 at around 1:15 am on Saturday morning.

What’s in the bill?

Important definitions: The General Assembly made several important distinctions in language that have significant impacts in the omnibus bill

School: refers to public schools, childcare agencies and public postsecondary institutions only – not to include private schools
Severe Conditions: this definition has two parts. A severe condition exists when:

1) The Governor has declared a state of emergency related to Covid-19
2) A given county has an average rolling 14-day Covid-19 infection rate of at least 1,000 per 100,000 residents of the county

School mask mandate prohibition: this rule prohibits districts from establishing mandatory mask policies unless certain Covid thresholds are met

How it works: Mask mandates in schools are not entirely banned by the bill. In “severe conditions”, schools may have the opportunity to mandate that students, staff and visitors in a school wear masks. To do so, the principal must submit a written request to the district (or charter governing body) for permission to implement a mask mandate. The district may then choose to permit the school (but not a district as a whole) implement a mask mandate. This permission is valid for 14 days, and, if at the end of the 14 days, either the infection rate has fallen or the Governor’s state of emergency has expired, the mask mandate must be dropped.
How it affects Tennesseans with disabilities: The text of the omnibus bill includes a clause that requires schools provide, “to the extent practicable, provide a reasonable accommodation pursuant to the Americans with Disabilities Act”. To enact this clause, parents must provide a written request to the school principal, who must then determine whether the school will provide the accommodation or deny the request. The bill prescribes an accommodation that, should a principal approve the accommodation request, requires the school place the student with an approved accommodation in an educational setting in which other students, teachers or staff who would be within 6 feet of the student for more than 15 minutes must wear a mask. Essentially, this means that an entire classroom must mask, or the student who receives the accommodation be placed more than 6 feet away from all other students, staff and teachers.
What it means: This section is potentially the most problematic rule in a problematic bill. First, the bill asks principals to be experts in the Americans with Disabilities Act (alongside IDEA and Section 504) in order to determine how to best provide an accommodation to a student with a disability who requests one. Second, with limited staff, resources and space, the practical effect of this bill would likely lead to segregation of student with disabilities who have a mask accommodation. This could look like moving these students into a separate learning space, or to place them away from their peers in their classroom. Either way, this type of segregation would be very likely to be subject of litigation related to the ADA, as other state mask policies have been.

Face coverings generally: Governmental entities and entities that accept state funds are prohibited from enforcing a face mask mandate, except when certain conditions are met.

How it works: Like the rule governing masking in schools, this rule depends on the “severe condition” status of a given county. If a county has a “severe condition”, governmental entities may institute a mask requirement. Rules governing face mask mandates are found in multiple chapters in the bill. In chapter 2, governmental entities are prohibited from requiring masks as a condition for entering the premises and/or benefitting from provided services. In chapter 6 (the anti-commandeering clause), the text states that entities that receive “public funds of the state” are prohibited from using those funds to “implement… Covid-19 countermeasure(s)”, which could include mandating masks. This could include businesses, organizations or non-profits with state contracts. Private businesses are exempt from this rule, as are entities that would stand to lose federal dollars as a result of compliance with this bill, such as CMS providers, airports and entities of the federal government. In order to qualify for the exemption, entities must submit written applications to the state Comptroller proving that compliance with this rule would violate a federal contract or cause a loss of federal funds. The comptroller will then determine whether that entity qualifies based for the exemption.
How it affects Tennesseans with disabilities: These anti-mask mandate rules have no exemptions for individuals with disabilities written into the code. That said, all of the exempted and non-exempted entities described above must still comply with all federal disability protections, including the Americans with Disabilities Act. The exemptions written into the bill would, pending approval from the state, permit many hospitals, clinics, healthcare providers and congregate setting facilities to continue to enforce mask mandates on their premises. Tennesseans participating in the Consumer Directed option for state waiver programs would be also permitted to require direct support providers to wear masks in their home as well.
What it means: The carveout of private businesses, likely thanks to intervention from Ford and state business associations, is greatly beneficial to Tennesseans with disabilities. As the bill was originally written, which prohibited even private businesses from enforcing a mask mandate, Tennesseans with disabilities or medical conditions that made them vulnerable to complications from Covid would be shut out of almost all public and private entities. That would have meant that gas stations, grocery stores, Target, etc. would have all been mask-free zones and subject to unchecked spread of Covid-19. That said, courthouses, benefits offices and city hall buildings are all still subject to the mask mandate ban under this bill, effectively cutting out Tennesseans with disabilities from participating in civic life, paying a fine or turning in paperwork for state benefits. Further, non-profits like Tennessee Disability Coalition, in wanting to protect employees and clientele, may struggle to implement reasonable Covid-19 countermeasures using other, non-state sources of income (such as a federal grant) because the text of the bill is so broad that doing so may threaten state funding to that organization.

Vaccine mandates and status: Governmental entities, including schools, cannot mandate that a person receive a Covid-19 vaccine, or mandate that private businesses or schools require proof of vaccine for entry or to access goods or services. Private businesses, governmental entities and public schools are also prohibited from requiring a person to provide proof of vaccination.

How it works: This section of the bill prohibits nearly all requests to show proof of vaccination as a condition of entry, or to access goods and services provided by most entities in the state. This chapter also has the effect of prohibiting employer-mandated vaccine requirements. Technically, employers can mandate that their employees receive the vaccine as a condition of employment, but they cannot request or require proof of vaccination or take adverse action against a person related to their vaccine status. However, some entities in the state, such as private businesses, schools or employers that receive federal funds and would stand to lose federal funding by complying with this chapter of the bill, have the ability to apply for an exemption. In order to receive the exemption, the entity must send yet-to-be determined details of the possible loss of funds to the Comptroller of the State, who will determine the validity of the exemption and approve or deny the request. Each exemption is valid for one year before entities must again make the request to the Comptroller.
How it affects Tennesseans with disabilities: There are again no qualifiers in this section of the bill that would benefit or protect Tennesseans with disabilities. Many important institutions and businesses in the state that many Tennesseans with disabilities may frequent, such as hospitals and clinics, provider agencies or advocacy organizations, are likely to receive some kind of federal funding and would thus be subject to federal Covid-19 rules. Some of those entities may then be eligible for exemptions from the Comptroller. That said, the executive orders established by the Biden administration requires only federal contractors and CMS-participating organizations to mandate vaccination of their employees. The executive order, as of now, excludes grantees, and contracts/subcontracts below $250,000, which may include many disability-related organizations in the state. The bill text states that this section does not prohibit individuals from voluntarily providing proof of vaccination or from individuals mandating vaccination as a condition to enter a personal residence.
What it means: In the big picture, this section takes one of our best tools for controlling the pandemic and purposefully limits its proliferation. In Tennessee, it very well could mean that we remain in the bottom ten states for vaccinations, perpetually leaving us on the edge of another sudden and expansive outbreak, which has and will continue to have a disproportionate impact on individuals with disabilities. As of now, the restrictions that prohibit businesses from mandating vaccination (or require proof of vaccination) as a condition of employment has the potential to make many workplaces more unsafe for people with disabilities. Further, the inability for entertainment venues, such as Bridgestone Arena, to require proof of vaccination as a condition of entry essentially shuts out Tennesseans with disabilities from safely accessing these venues.

Other clauses: The omnibus bill addressed a number of other issues related to the pandemic, but may be considered less impactful in daily living in the state.

Quarantine authorities – the state Commissioner of Health now has sole authority to determine guidelines for when a person must quarantine as a result of Covid-19. Individuals must quarantine if they test positive for Covid-19, but the quarantine must be immediately lifted if the person tests negative for Covid-19 during the quarantine period. The Commissioner of Health also has the sole authority to quarantine a business or school, as well as the authority to lift that quarantine. The bill states that local health entities and officials, mayors and governmental entities, as well as schools do not have authority to quarantine.
Mature Minor Doctrine – This nearly 35-year-old state policy previously permitted healthcare providers the discretion to determine whether an individual under the age of 18 could request and receive health care, including vaccines. The omnibus bill prohibits healthcare providers from administering the Covid-19 vaccine to a minor under the Mature Minor Doctrine without written consent from the minor’s parent.
Monoclonal Antibodies – This rule grants healthcare providers the discretion to provide monoclonal antibody treatments to patients based on their independent judgement. In September, the Biden administration limited delivery of monoclonal antibody treatments to states in light of their disproportionate use in some states, including Tennessee. The Tennessee Department of Health then advised healthcare providers to administer the treatment only to those most likely to be hospitalized.
Liabilities – During the 2021 General Assembly session, the legislature passed laws that protected private businesses, healthcare providers and others from liability arising from Covid-19 infection. This bill expands those protections, though it noticeably omits vaccine injury from these liability protections.
Unemployment Benefits – This chapter makes individuals who have quit their job as a result of Covid-19 vaccine requirements eligible for state unemployment benefits. The rule also makes this clause retroactive.
Anti-Commandeering – This clause bans the use of state funds, such as contracts, grants or budgeted expenses, to implement, regulate or enforce the administration of Covid-19 countermeasures (such as masking, vaccine requirements, etc.).
Remedies – The omnibus bill created a “private right of action” for individuals who believe that they have been caused harm by individuals, businesses or other entities violating the rules laid out in the bill. A private right of action gives individuals the right to file suit in order to enforce state laws. The private right of action, in this case, applies specifically to violations of chapter 2 (vaccine and proof of vaccine requirement prohibition) and the mature minor doctrine.

On Friday, November 12th, Governor Lee signed the omnibus bill into law. Most of the clauses went into effect immediately, but there are some exceptions. Shortly after the Governor signed the law, parents representing 8 Tennessee school children with disabilities filed suit Friday seeking to block implementation of the school mask mandate prohibition. The suit was quickly assigned and a judge blocked the order, allowing school districts in the state to continue to implement a mask mandate.

It is likely that this bill, large as it is, will continue to be challenged in the courts. The General Assembly wrote a “severability” clause into the law, meaning that in the event one portion, such as a school mask mandate prohibition, is blocked or found unconstitutional, that portion will be removed and the rest of the law will remain intact. It is also possible that the General Assembly addresses some of the pushback or makes changes to unpopular parts of the bill in the regular session that begins in January.

The Covid-19 omnibus bill is extremely troubling for the health of Tennesseans, and even more concerning for Tennesseans with disabilities. Generally, this bill limits the use of several effective tools that we know can help mitigate the dangers from the Covid-19 pandemic that Tennesseans with disabilities face. These tools have helped make schools, businesses and public spaces safer and more accessible to more Tennesseans during the pandemic, and their prohibition serves to exclude those who are most vulnerable.