Government & Legal Update

Advocacy Update: Two “Special” Sessions, Federal COVID-19 Vaccine Mandates, & More Lawsuits

October in a non-election year is normally known as the “offseason” for the Tennessee General Assembly, but then again, normal seems somewhat abnormal these days. Since our last issue circulated, the General Assembly convened and adjourned two special sessions. As anticipated in these pages, the first was to finalize the state’s massive economic development deal with Ford Motor Company.

The Dearborn, Michigan auto giant announced it will develop a $5.6 billion “mega campus” and bring 6,000 jobs to West Tennessee in a joint venture with SK Innovation. In return, Governor Lee convened the state legislature on October 18 to formally approve over $884 million in incentives, including $500 million in grants to Ford. The package also included $200 million in new road funding and $138 million in site prep and wastewater utilities. It was approved by overwhelming majorities in both chambers by votes of 90-3 (House) and 27-3 (Senate).

Although special sessions are typically convened by way of a governor’s “call,” the General Assembly took the rare step of calling themselves into another special session two weeks after the Ford session. It is rare partly because it requires the physical signatures from at least two-thirds of each chamber, making a governor’s declaration logistically easier. But Governor Lee disagreed with his fellow republicans in the legislature that state legislation was a necessary (and effective) response to the Biden Administration’s various COVID-19 vaccine mandates. In his public comments, the Governor said the more appropriate tactic was to challenge the Biden Administration in court (Tennessee Attorney General Herbert Slatery has joined two different suits). Nevertheless, republicans in the General Assembly, seemingly under intense pressure from constituents, gathered the requisite number of signatures to bypass the governor and convene themselves on October 27.

In three days, the legislature passed six substantive pieces of legislation relative to COVID-19. A brief summary of each is below. Governor Lee signed each bill on November 12, 2021, except for Pub. Ch. 9004, which he allowed to become law without his signature.

Public Chapter 1 authorizes elections of school board members to be conducted on a partisan basis and authorizes a person seeking a position on any board in the county to campaign as the nominee or representative of a political party. It authorizes political parties to nominate candidates for school board membership by any method authorized under the rules of the party or by primary election under Title 2 if at least one county primary board elects to conduct school board elections on a partisan basis. Public Chapter 2 adds cash as a form of eligible collateral for purposes of the collateral required to be pledged to secure public deposits. The new law decreases the collateral pledge level for public deposits held by collateral pool banks.

Public Chapter 3 decreases the time a state of emergency may continue under an executive order or proclamation issued by the governor from 60 days to 45 days.

Public Chapter 4 limits the authority of the state’s six independent county health departments created by private act (Shelby, Davidson, Knox, Hamilton, Sullivan, and Madison) and gives the Governor “exclusive jurisdiction” over directives during a pandemic. The new law generally forbids the commissioner of health and local health officials from official acts contrary to a Governor’s order during a pandemic.

Public Chapter 5 allows the attorney general and reporter to petition the court for appointment of a “district attorney general pro tem” if a district attorney general “peremptorily and categorically” refuses to prosecute all instances of a criminal offense without regard to facts or circumstances. The law requires the court to appoint a district attorney general pro tem if the court finds the district attorney general has refused to attend and prosecute according to law.

Public Chapter 6: The “main event” of the COVID-19 special session, Pub. Ch. 6 as originally drafted placed numerous restrictions on private businesses, public and private schools, and government entities relative to COVID-19 masking and vaccine policies. Lobbyists from businesses, hospitals, and other entities subject to various federal regulations raised concerns with the looming uncertainty of being caught in between conflicting state and federal COVID-19 laws. After some lengthy negotiations, lawmakers approved an amended version of the bill. Among the changes included exemptions for entities that potentially stood to lose federal funding if forced to comply with the new state law, including government contractors, hospitals, and colleges and universities. The new law also does not prohibit businesses from imposing their own mask policies, including private schools. Public school systems face considerably higher hurdles regarding masks under the new law.

Among the more controversial provisions to remain are provisions that allow employees terminated for refusing to comply with COVID-19 vaccine requirements to qualify for unemployment insurance and creating a private right of action against employers who take “adverse action” against employees in violation of the new law. “Adverse action” is defined broadly by the new law and includes actions to “discharge, threaten,

or otherwise discriminate against an employee in any manner that affects the employee's employment, including compensation, terms, conditions, locations, rights, immunities, promotions, or privileges.” The new law includes a “sunset” provision and is set to automatically expire on July 1, 2023.

Take it to Court The federal judiciary will get its chance to weigh in on numerous federal and state COVID-19 laws and regulations. As this magazine went to print, a lawsuit challenging Tennessee’s new COVID-19 (Pub. Ch. 6) was pending before the U.S. District Court for the Middle District of Tennessee as to whether the new state law is preempted by the Americans with Disabilities Act (ADA). U.S. District Judge Waverly Crenshaw had already ruled (along with colleagues in the Western and Eastern Districts) that an Executive Order issued by Governor Lee allowing parents of students to opt out of mask mandates violated the ADA. The legislature attempted to address this issue with a provision allowing for “reasonable accommodations” to be made for such students under the new state law.

Republican attorneys general (AGs) are turning to federal court for relief from federal regulations as well. As mentioned briefly above, Attorney General Herbert Slatery joined fellow republican AGs in lawsuits challenging two Biden Administration regulations requiring employers to impose COVID-19 vaccine mandates. The first challenges an emergency temporary standard issued by the Biden Administration’s Occupational Safety and Health Administration (OSHA) and applies to employers with 100 or more employees. The second challenges the President’s move to require federal contractors to maintain vaccine requirements for their employees.

Over 34 lawsuits were filed across the nation within 10 days of Biden’s announcement of the OSHA vaccine mandate, and the 5th Circuit Court of Appeals temporarily blocked the OSHA rule. Due to the numerous lawsuits being filed multiple circuits, the U.S. Judicial Panel on Multidistrict Litigation decided via lottery that the 6th Circuit Court of Appeals would decide the merits of the challenges to the OSHA rule. The 6th Circuit includes Tennessee and is generally seen as a conservative circuit, with most judges being appointees of republican presidents.

If it survives legal challenge, the Biden OSHA rule is scheduled to become fully effective on January 4, 2022, exactly one week before the Tennessee General Assembly reconvenes for regular session (January 11).

About the Author

Trey Moore is the government and legal consultant for Insurors. He operates Trey Moore Consulting in Nashville and formerly served as senior public policy counsel for one of Nashville’s largest law firms. Trey has over a decade of experience in representing clients before the Tennessee General Assembly and state government. u

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