Amends TCA Title 9; Title 14; Title 29; Title 38; Title 49; Title 50; Title 63 and Title 68.

ON OCTOBER 29, 2021, THE SENATE ADOPTED AMENDMENTS #1 AND 2, AND PASSED SENATE BILL 9014, AS AMENDED. AMENDMENT #1 rewrites this bill; revises and adds provisions relative to COVID-19; transfers certain existing provisions and adds the new provisions to a newly created title in TCA (Title 14); specifies that the provisions of the newly created title will prevail over any conflicting law; and prohibits the governor (except in cases where the governor is exercising the governor's emergency powers during a state of emergency declared by the governor), a governmental entity, or a public official from suspending any provision of the newly created title, regardless of whether there is a state of emergency, all as discussed below. PRESENT LAW Prohibited Actions by Public Officials and Entities Present law prohibits: (1) The governor from issuing an executive order, a state agency or department from promulgating a rule, and a political subdivision of this state from promulgating, adopting, or enforcing an ordinance or resolution, that requires a person to receive an immunization, vaccination, or injection for the SARS-CoV-2 virus or any variant of the SARS-CoV-2 virus; (2) A state or local governmental official, entity, department, or agency from: (A) Requiring, or mandating that a private business require, proof of vaccination as a condition of entering upon the premises of the business or utilizing services provided by the business; or (B) Requiring proof of vaccination as a condition of entering upon the premises of a state or local government entity, or utilizing services provided by a state or local government entity; and (3) A state agency or department from promulgating a rule, and a political subdivision of this state from promulgating, adopting, or enforcing an ordinance or resolution, that requires medical treatment for those who object to the medical treatment on religious grounds or by right of conscience. “Medical treatment” is defined as an immunization, vaccination, or injection for the SARS-CoV-2 virus or any variant of the SARS-CoV-2 virus. A political subdivision does not include a governmental entity that is subject to a federal or state statute or rule that prohibits the entity from requiring medical treatment for those who object to the medical treatment on religious grounds or right of conscience. This provision does not apply to a student of a public institution of higher education created pursuant to state law who is subject to the policies or rules of a private office that delivers healthcare services or of a healthcare facility that is not owned or controlled by the public institution of higher education, when the student is participating in a program of study or fulfilling educational requirements for a program of study in medicine; dentistry; pharmacy; or another healthcare profession. Tennessee COVID-19 Recovery Act Present law, which is scheduled to expire July 1, 2022, provides that there is no claim against any person for loss, damage, injury, or death arising from COVID-19, unless the claimant proves by clear and convincing evidence that the person proximately caused the loss, damage, injury, or death by an act or omission constituting gross negligence or willful misconduct. Present law establishes requirements for a verified complaint for a claim alleging loss, damage, injury, or death "arising from COVID-19." Present law also requires a certificate of good standing regarding consultation with a physician for a claim alleging loss, damage, injury, or death "based on exposure to or contraction of COVID-19." THIS AMENDMENT This amendment: (1) Deletes the present law provisions described above in regard under Prohibited Actions by Public Officials and Entities; (2) Establishes new requirements and standards in regard to COVID-19 responses by public and private entities, as discussed below; and (3) Transfers the Tennessee COVID-19 Recovery Act to be part of the newly created Title 14 and revises certain language in the Act, as discussed below. TITLE 14 – COVID-19 (new provisions and transferred provisions) VACCINE MANDATES AND STATUS This amendment prohibits: (1) A governmental entity, school, or local education agency (LEA) from mandating that: (A) A person receive a COVID-19 vaccine; or (B) A private business or school require proof of vaccination as a condition to access the private business's or school's premises or facilities or to receive the benefits of the private business's or school's products or services; and (2) A private business, governmental entity, LEA, or school from compelling or otherwise taking 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. This amendment specifies that a medicare certified provider or medicaid certified provider is not a private business or governmental entity, but only to the extent that the medicare certified provider or medicaid certified provider is subject to a valid and enforceable medicare or medicaid condition of participation that imposes a requirement contrary to the newly created Title 14. "School" means a public elementary or secondary school operated by a local education agency or by the state with public funds, including a charter school; a publicly-operated child care agency, child care program, preschool, or nursery school; and a public postsecondary educational institution. FACE COVERINGS GENERALLY (1) This amendment prohibits: (A) A private business that receives grant funds or tax credits from this state (a "publicly-funded private business") or governmental entity from requiring a person to wear a face covering as a condition to access the publicly-funded private business's or governmental entity's premises or facilities or to receive the benefits of the publicly-funded private business's or governmental entity's products or services unless severe conditions exist and the requirement is in effect for no more than 14 days. "Severe condition" means that the governor has declared a state of emergency for COVID-19 and a county has an average rolling 14-day COVID-19 infection rate of at least 1,000 new known infections for every 100,000 residents of the county based on the most recent data published by the department of health; (B) An employer that receives grant funds or tax credits from this state (a "publicly-funded employer") from requiring an employee to wear a face covering as a term or condition of employment or taking 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 14 days.; and (C) A publicly-funded private business, governmental entity, or publicly-funded employer from requiring a person to wear a face covering if the person provides documentation from the person's healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person's sincerely held religious belief. (2) This amendment authorizes a publicly-funded private business, governmental entity, or publicly-funded employer to renew its face covering requirement for additional 14-day periods if severe conditions continue to exist each time the face covering requirement is renewed. If, at the end of a 14-day period, severe conditions no longer exist, then the publicly-funded private business, governmental entity, or publicly-funded employer must not renew its face covering requirement or otherwise require a person to wear a face covering as a condition to access its premises or facilities; to receive its products or services; or as a term or condition of employment. FACE COVERINGS FOR SCHOOLS This amendment prohibits a school or the governing body of a school from requiring a person to wear a face covering while on school property, unless: (1) The principal or president of the school submits a written request to the school's governing body for the adoption of a policy requiring all persons on school property to wear a face covering; (2) Severe conditions exist; (3) The school's governing body adopts such a policy on a school-by-school or campus-by-campus basis and only: (A) For the school for which a request is submitted by the principal or president; (B) If all other conditions or requirements of this item (3) exist at the time the policy is adopted; and (C) If the policy is in effect for no more than 14 days; (4) The school provides face coverings for persons 12 years of age and older that meet the U.S. National Institute for Occupational Safety and Health N95 classification of air filtration, meaning that the face covering filters at least 95 percent of airborne particles, including droplets containing COVID-19; and (5) The school provides age-appropriate face coverings for persons under 12 years of age, but over five years of age, that provide air filtration similar to the face coverings described above in (4). Renewal, Exemptions, and Accommodations: This amendment provides renewal provisions similar to those described above for face coverings generally. This amendment also prohibits the imposition of the face covering requirement if a person provides documentation from the person's healthcare provider that wearing a face covering is contraindicated for the person, or if the person objects to wearing a face covering because of the person's sincerely held religious belief. This amendment further provides that a school must, to the extent practicable, provide a reasonable accommodation pursuant to the Americans with Disabilities Act to a person who provides a written request for a reasonable accommodation to the principal or president of the school. The principal or president of the school will evaluate the request on behalf of the school and, to the extent practicable, provide a reasonable accommodation. The principal or president must issue a decision approving or denying the request in writing. If the principal or president denies the request, then the grounds for denial must be provided in the principal's or president's written decision. If the principal or president approves the request, then the school must place the person in an in-person educational setting in which other persons who may place or otherwise locate themselves within six feet of the person receiving the reasonable accommodation for longer than 15 minutes are wearing a face covering provided by the school that meets the above-described standards. This amendment prohibits the governing body of a school from using state funds to mandate or require students to wear face coverings in violation of this amendment. If there is a violation, then the commissioner of education may withhold future distributions of school funds from a local education agency in the amount of the state funds used in violation of this amendment, or the attorney general may initiate legal proceedings to recover all such state funds. UNEMPLOYMENT BENEFITS RELATIVE TO COVID-19 Present law establishes certain events that disqualify a person from receiving benefits under the Tennessee Employment Security Law. A person is disqualified if the person leaves work voluntarily without good cause connected to the person's work. This amendment specifies that the disqualification from receipt of unemployment benefits provided does not apply to a claimant who was required to receive a COVID–19 vaccine and the claimant failed or refused to receive the COVID-19 vaccine. This amendment provides that unemployment benefits must not be reduced or denied under the Employment Security Law to an otherwise eligible claimant who left employment due to the claimant's failing or refusing to receive a COVID-19 vaccine. Under this amendment, an otherwise eligible claimant will be entitled to a retroactive payment of unemployment benefits if the claimant was denied benefits on grounds that the claimant's separation from employment for failing or refusing to receive a COVID-19 vaccine was insufficient for benefits. HEALTHCARE STANDARDS OF PRACTICE Quarantine This amendment establishes that the commissioner of health has the sole authority to determine quarantine guidelines for: (1) A person if the person tests positive for COVID-19. The quarantine of a person must be lifted if the person receives a negative antigen detection test result or a negative molecular diagnostic test result at any time during the quarantine period; and (2) A private business or school for purposes of closing the private business or restricting the operation of the private business for purposes of COVID-19. The quarantine of a business must be lifted as soon as practicable after the commissioner is satisfied that the conditions at the business do not present a serious public health or safety threat with respect to the spread of COVID-19. This amendment specifies that a local health entity or official, mayor, governmental entity, or school does not have the authority to quarantine a person or private business for purposes of COVID-19. This amendment requires the commissioner to establish quarantine guidelines by rules promulgated pursuant to the Uniform Administrative Procedures Act. Monoclonal Antibodies Notwithstanding any guidance or advice received from a governmental entity, this amendment requires a healthcare provider to exercise independent professional judgment when determining whether to recommend, prescribe, offer, or administer monoclonal antibodies to a patient as a treatment or prophylaxis against COVID-19. Mature Minor Doctrine This amendment generally prohibits a healthcare provider from providing a patient who is an unemancipated minor with a COVID-19 vaccine without first obtaining written consent from the minor patient's parent or legal guardian. This prohibition will not apply in the case of a person who is 17 years of age and has enlisted in the military. This provision will not apply if a healthcare provider, in the provider's independent professional judgment, suspects that the minor may be subjected to abuse by a parent or legal guardian or is a dependent and neglected child. If this exception applies, then the common law applies to the minor's capacity to consent to receiving a COVID-19 vaccine. LIABILITY/Tennessee COVID-19 Recovery Act This amendment transfers the Tennessee COVID-19 Recovery Act (which is described above under the PRESENT LAW) to be part of Title 14, deletes the short title for the liability provisions, and revises such liability provisions as follows: (1) In regard to the requirements for a verified complaint for a claim alleging loss, damage, injury, or death, this amendment changes the reference from "arising from COVID-19" to "arising from a COVID-19 infection"; and (2) In regard to the requirement for a certificate of good standing regarding consultation with a physician for a claim alleging loss, damage, injury, or death, this amendment changes the reference from "based on exposure to or contraction of COVID-19" to "based on a COVID-19 infection." This amendment clarifies that, unless otherwise prohibited by the United States or Tennessee Constitution, the liability provisions apply to claims arising from COVID-19 except those for which, on or before August 3, 2020: (1) A complaint or civil warrant was filed; (2) A notice of a claim was with the Tennessee claims commission; or (3) Notice was satisfied under the laws pertaining to healthcare liability claims. This amendment retains the July 1, 2022, termination date for these liability provisions and the applicability of the provisions to any loss, illness, injury, or death occurring before July 1, 2022, to which none of the exceptions listed in above in (1)-(3) apply. This amendment codifies the termination, applicability, and exception language described above in these particular liability provisions and other related existing liability provisions that were enacted by Chapter 1 of the Public Acts of 2020 (2nd Extraordinary Session) relative to liability for COVID-19. MISCELLANEOUS Anti-commandeering. This amendment prohibits the allocation of public funds of this state, or any political subdivision of this state, for the implementation, regulation, or enforcement of any federal law, executive order, rule, or regulation that mandates the administration of a COVID-19 countermeasure. This amendment also prohibits the allocation of personnel or property of this state, or any governmental entity of this state, for the implementation, regulation, or enforcement of any federal law, executive order, rule, or regulation that mandates the administration of a COVID-19 countermeasure. Remedies. A person injured as a result of a violation of the vaccine status or face covering provisions of this amendment, or the provisions of this amendment that prohibit the provision of a COVID-19 vaccine to a minor without parental consent, may maintain a private right of action for injunctive relief and to recover compensatory damages and reasonable attorneys' fees against an alleged violator. AMENDMENT #2 adds a prohibition against licensing boards taking an action against the license of a health care provider based solely on the provider's recommendations to a patient regarding treatment for COVID-19 or for prescribing or dispensing medication so long as the provider exercises independent medical judgment, believes that the treatment is in the best interest of the patient, and the provider obtains written informed consent from the patient. ON OCTOBER 29, 2021, THE HOUSE SUBSTITUTED SENATE BILL 9014 FOR HOUSE BILL 9077, ADOPTED AMENDMENTS # 12, 13, AND 14 AND PASSED SENATE BILL 9014, AS AMENDED. AMENDMENT #12 incorporates the changes made by Senate Amendment #1 with several nonsubstantive technical changes and the following substantive differences: (1) Includes the discriminatory denial of privileges as a form of adverse action for purposes of this bill's provisions concerning face covering requirements by governmental entities and private businesses, and administrative discipline against health care providers; (2) Defines "employee" to mean a natural person who performs services for an employer for valuable consideration, and includes an applicant for employment with an employer; (3) Excepts entities operating on property owned, managed, or secured by the federal government, but only to the extent any such entity is subject to a valid and enforceable federal requirement contrary to the new Title 14, from provisions of this bill that apply to a "governmental entity" and a "private business"; (4) Excepts facilities that prepare food for distribution and consumption, but only to the extent any such facility is subject to a valid and enforceable federal inspection requirement contrary to the new Title 14, from provisions of this bill that apply to a "private business"; (5) Adds three statements to the legislative findings contained in this bill; (6) Makes the provisions of this bill that apply to schools applicable to private schools, private child care programs, and private postsecondary institutions; (7) Makes the provisions described in the section of the Summary for Senate Amendment #1 under "Face coverings generally" applicable to all non-exempt private businesses instead of only publicly-funded private businesses; (8) Removes language that specifies that the limitation on the governor's authority to suspend a provision of the new Title 14 will not prohibit the governor from suspending any such provision during a time when the governor has declared a state of emergency; (9) Specifies that the prohibition against mandating COVID-19 vaccination will apply to government officials, as well as government entities, schools, and LEAs; (10) Provides that a class of entities may be temporarily exempted from complying with any provision of the COVID-19 provisions of the newly created Title 14 when necessary to conform to federally awarded or amended contracts, subcontracts, or postsecondary grants as a condition to receipt of federal funds. This amendment authorizes the commissioner of finance and administration, upon notification from a private business, governmental entity, or postsecondary educational institution that application of a provision of this title would jeopardize the receipt of federal funds by a class of entities, to identify a class of private businesses, governmental entities, postsecondary educational institutions, or employers as designated entities that are exempt from complying with any or all provisions of Title 14. Any such exemption must be narrowly tailored to exempt a class of designated entities only from the provisions of Title 14 that would jeopardize the classes' receipt of federal funding. Under this provision, an exemption will take effect once the commissioner files a written statement with the secretary of state specifying