Metro legal gives guidance on state's COVID rules

Downtown Nashville
Posted at 8:38 PM, Nov 30, 2021
and last updated 2021-12-01 07:05:38-05

NASHVILLE, Tenn. (WTVF) — From quarantine orders to city employee vaccine mandates, Metro Nashville's Department of Law gave guidance to city council members about new state laws after being asked to do so earlier this month.

The department sent a 10-page letter, detailing the impact of laws passed by the Tennessee General Assembly during the third extraordinary session. Written to Vice Mayor Jim Shulman, the letter explains the new state laws, shows how the city should respond and also gives an opinion on their content. The new laws are mostly aimed at COVID restrictions, but also district attorneys who say they won't enforce specific rules from the state.

Metro Councilman at-large Bob Mendes and a large group of other council members asked for legal to interpret the legislation.

"I'm glad Metro is taking it seriously and gave us at least, two weeks in, their thoughts about what's enforceable, what's not enforceable, what needs more thinking," Mendes said.

The letter starts by criticizing the state's decision to pass the laws.

"For perhaps the first time in Tennessee's history, the state government has acted in the middle of an emergency to take away tools that local governments and schools have been using to protect the health of the public during an emergency," wrote Metro Director of Law Wallace Dietz in the first few paragraphs.

The letter references the legislation in 10 sections.

First up in the letter was masks in Metro facilities. It laid out how the state has taken authority from the city to issue mask mandates in metro facilities. There's an exception for "severe conditions" such as if the governor has declared a state of emergency or if the county has an average rolling 14-day infection rate of at minimum 1% of the population.

The city has removed signs mandating masks in city buildings and replaced them with signs recommending mask-wearing.

Second, mask mandates in private businesses and schools are not prohibited.

Third on the list is the issue with masks in Metro Nashville Public Schools. Public schools can't require masks as part of the legislation. The letter goes on to detail Gov. Bill Lee's executive order, which would require schools give parents the ability to opt-out of requiring their children to wear masks in school. It was challenged in court and courts ruled there could be serious health consequences by that EO.

Then, after the legislation became law, a class-action lawsuit was filed by parents of eight disabled children. The judge issued an order to have schools continue to follow whatever mask policy they were using before the bills became law. The letter also said the legislation may result in the loss of federal funding for schools.

The letter goes on to state the legislation takes authority away from the city to issue quarantine orders for COVID cases. That authority now belongs to the state commissioner of health.

Further down, it details how the law attempts to prohibit the city from issuing vaccine mandates for the public and its own employees. While the legal department said the city already doesn't have the authority to mandate the public be vaccinated, prohibiting a mandate for city employees may be preempted by federal rules.

The federal Occupation Health and Safety Administration (OSHA) requires employers with 100 employees to either mandate vaccines for all employees, or mandate vaccines and allow the unvaccinated to present a negative COVID test every seven days. There is litigation likely headed for the U.S. Supreme Court over the issue. Metro plans to implement the federal rules over state rules, though there's not a formal policy until litigation is complete.

It also references a new state law which "allows the Tennessee Attorney General to petition the Tennessee Supreme Court to appoint a district attorney pro tem to handle criminal cases if the sitting DA refuses to prosecute all instances of a certain criminal offense." The department referred any questions to District Attorney Glenn Funk on the matter.

Dietz wrote there's a portion about the department of health. Legal believes new state law about appointment provisions for the local department of health doesn't apply to Nashville.

The last three sections deal with entertainment venues, the ability for someone to bring a lawsuit against anyone violating the new law regarding vaccines and masks, and loss of federal funding.

Venues can't require attendees to be vaccinated under the new law. However, they can require a recent negative COVID test result and permit attendees to show vaccination in lieu of a test. Although, some venues may continue to operate under agreements with artists to require vaccination.

There's now a state exemption request available via the comptroller's website for businesses, governments or schools to seek an exemption due to conflicting federal regulations.

The department goes on to explain the situation regarding the laws may change with uncertainty about litigation.

Councilman Mendes echoed a sentiment in the letter.

"It is a rock and a hard place. The state, on vaccinations, says don't do a certain thing and the federal government says to do a certain thing. I think we have to go with the higher authority, which is the federal government, on that. And so, at least metro has a plan and is going to require vaccinations as required by federal law. We'll see if the state has a problem with that," he said.

Shulman said he plans to ask the department to keep city leaders updated on how lawsuits will impact the city as they unfold.