Tennessee Removes COVID-19 Statute’s Sunset Provision

Tennessee has permanently extended its COVID-19 statute under an enactment that went into effect earlier this year.

Senate Bill (SB) 11, signed into law with immediate effect by Governor Bill Lee on March 21, 2023, removed the sunset provision of the state’s COVID-19 statute, which was set to expire on July 1, 2023. Governor Lee signed the COVID-19 statute into law on November 12, 2021.

Quick Hits

• Tennessee has removed a sunset provision in its COVID-19 statute, which addresses vaccine mandates, mask requirements, COVID-19–related unemployment benefits, and Medicare and Medicaid vaccine requirements.
• Tennessee’s COVID-19 law includes an exemption process for federal contractors if compliance with the statute would result in a loss of federal funding.
• Healthcare providers are now covered under the state law.

Summary of Tennessee’s COVID-19 Statute

Vaccine Mandates

The Tennessee COVID-19 statute does not prohibit private employers from instituting vaccine mandates. Instead, the statute attempts to restrict employers from mandating vaccines. According to the statute, “A private business, governmental entity, school, or local education agency shall not compel or otherwise take an adverse action against a person to compel the person to provide proof of vaccination if the person objects to receiving a COVID-19 vaccine for any reason.”

Mask Mandates

As it relates to governmental entities, the COVID-19 statute limits the prohibition on mask mandates. The statute specifically states: “An employer that is a governmental entity shall not require an employee to wear a face covering as a term or condition of employment, or take an adverse action against an employee for failing to wear a face covering, unless severe conditions exist at the time the requirement is adopted and the requirement is in effect for not more than fourteen (14) days.” (Emphasis added.)

Unemployment Benefits

The law permits employees who have been discharged for refusing to be vaccinated to receive unemployment benefits.

Medicare and Medicaid Vaccine Requirements

The law had excluded from its coverage healthcare providers that were subject to Medicare or Medicaid vaccine requirements. The federal COVID-19 vaccination requirements for Centers for Medicare and Medicaid Services–certified healthcare facilities ended on May 11, 2023. As a result, healthcare providers in Tennessee are no longer excluded from the statute.

Exemptions

Under the law, employers, private businesses, schools, and state and local governmental entities may apply to the Tennessee Comptroller’s Office for exemption from the requirements of the statute if “compliance … would result in a loss of federal funding.” This exemption process has allowed employers that are federal contractors to seek an exemption.

While this provision remains in the law, there are not any currently applicable federal contractor vaccine requirements from the federal government. The Tennessee Comptroller’s Office suspended exemptions after a federal court judge in Kentucky enjoined enforcement of the federal government’s vaccine mandate for federal contractors. The Comptroller’s Office has continued to accept and process notices for exemption; however, no exemptions will be granted unless the rules for federal contractors change.

Key Takeaways

Tennessee’s extinguishment of a sunset provision in its COVID-19 statute that would have repealed the law as of July 1, 2023, means that the COVID-19 statute remains in effect. In addition, the ending of the federal COVID-19 vaccination requirements for CMS-certified healthcare facilities has added healthcare providers in Tennessee to the entities subject to the state’s COVID-19 law. There are still questions to be answered regarding the COVID-19 law, including decisions related to several court challenges.

Ogletree Deakins will continue to monitor developments and will provide updates in the firm’s Coronavirus (COVID-19) Resource Center and on the Tennessee blog.

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