Monthly Archives: October 2021

All hail Tennessee’s new COVID czar, Jason Mumpower

Jason Mumpower presents a report to lawmakers in Nashville on Jan. 30, 2018. At left is then-Senate Majority Leader Mark Norris (R-Collierville). (Erik Schelzig, Tennessee Journal)

Amid heavy pushback from the business and education sectors about Republican lawmakers’ efforts to ban COVID-19 vaccine requirements for employees, the final version of the bill allows companies to apply for waivers in the event their federal funding might be jeopardized by following the new law.

To do so, they will have to submit applications to state Comptroller Jason Mumpower, who is empowered to set his own guidelines for what evidence will have to be handed in to make their case for an exemption.

Mumpower, incidentally, is a former state House Republican leader who is appointed by a joint convention of the General Assembly.

Here’s the language of the provision:

A provision of chapter 2 of this title does not apply to a private business, governmental entity, school, or employer that submits notice in writing to the comptroller of the treasury that compliance with a provision chapter 2 of this title would result in a loss of federal funding, to the extent such an exemption is necessary to conform to federally awarded or amended contracts, subcontracts, or postsecondary grants as a condition to receipt of federal funds. The comptroller of the treasury shall create guidelines as to what information is required in the notice. The comptroller shall review a notice submitted by a private business, governmental entity, school, or employer and, if the comptroller finds that compliance would result in a loss of federal funding, then the comptroller shall notify the private business, governmental entity, school, or employer in writing of its exemption.

Supporters said Mumpower’s office is a logical choice because it already handles a variety of contract issues. Opponents argue that at best the move creates another layer of red tape, and at worst gives lawmakers another chance to meddle in businesses’ internal workings.

Either way, Mumpower was quickly dubbed the COVID Czar.

How they voted: House COVID bill limps across finish line

The House meets at the state Capitol in Nashville on June 1, 2020. (Erik Schelzig, Tennessee Journal)

After much chest-beating and saber-rattling, the House backed off on several provisions of its bill aimed at blocking COVID-19 vaccine and mask requirements. When the final vote was taken at 1:15 a.m. Saturday, the measure received the support of just 57 Republicans — a significant drop from the unanimous 73 who signed on to the petition to hold the the special session.

The House started out with an effort to create a near-universal ban on businesses imposing mask or vaccine mandates on either customers or employees — a rule that would have even extended to people hired to provide home care in private residences. The final version of the bill retained the ability of sports and entertainment venues to require proof of vaccination or a negative test, restored the power of private citizens to set requirements for their homes, and allowed all private businesses to require masks.

Also exempt from the vaccine mandate ban are health care facilities and companies or institutions that can show their federal funding would be imperiled by noncompliance.

The bill does impose a ban on mask mandates at all public (but not private) schools. But the issue has been the subject of litigation ever since Gov. Bill Lee issued an executive order allowing parents to opt their children out of mask mandates. (A separate bill to fine local officials up to $10,000 for ignoring executive orders (as was done in Shelby County and Nashville) failed in the Senate.)

Business groups will be parsing through the final language of the omnibus measure to see whether their concerns about increased litigation and conflicting state and federal rules have been addressed.

Read the Tennessean and Associated Press accounts for the full rundown.

In the end, 57 Republicans and one Democrat, John Mark Windle of Livingston, voted in favor of the bill. Thirteen Democrats and nine Republicans voted against. Nineteen members were either absent or abstained.

Here’s the breakdown:

RepresentativePartyVote
Alexander, RebeccaRAbsent or abstained
Baum, CharlieRNo
Beck, BillDNo
Boyd, ClarkRYes
Bricken, RushRAbsent or abstained
Byrd, DavidRYes
Calfee, KentRYes
Campbell, ScottyRYes
Camper, Karen D.DNo
Carr, DaleRYes
Carringer, MicheleRYes
Casada, GlenRYes
Cepicky, ScottRAbsent or abstained
Chism, JesseDAbsent or abstained
Clemmons, John RayDNo
Cochran, MarkRYes
Cooper, BarbaraDAbsent or abstained
Crawford, JohnRAbsent or abstained
Curcio, Michael G.RNo
Darby, TandyRYes
Dixie, VincentDAbsent or abstained
Doggett, ClayRYes
Eldridge, RickRYes
Faison, JeremyRYes
Farmer, AndrewRYes
Freeman, BobDNo
Gant, Ron M.RYes
Garrett, JohnnyRNo
Gillespie, JohnRYes
Griffey, BruceRYes
Grills, RustyRYes
Hakeem, YusufDAbsent or abstained
Halford, CurtisRYes
Hall, MarkRYes
Hardaway, G. A.DNo
Harris, Torrey C.DNo
Haston, KirkRYes
Hawk, DavidRYes
Hazlewood, PatsyRNo
Helton, EstherRYes
Hicks, GaryRYes
Hicks, TimRYes
Hodges, JasonDNo
Holsclaw, Jr., John B.RYes
Howell, DanRYes
Hulsey, BudRYes
Hurt, ChrisRYes
Jernigan, DarrenDAbsent or abstained
Johnson, CurtisRYes
Johnson, GloriaDNo
Keisling, KellyRYes
Kumar, Sabi ‘Doc’RNo
Lafferty, JustinRYes
Lamar, LondonDNo
Lamberth, WilliamRYes
Leatherwood, TomRYes
Littleton, MaryRYes
Love, Harold M., Jr.DAbsent or abstained
Lynn, SusanRYes
Mannis, EddieRNo
Marsh, PatRYes
McKenzie, SamDAbsent or abstained
Miller, Larry J.DAbsent or abstained
Mitchell, BoDNo
Moody, DebraRYes
Moon, JeromeRAbsent or abstained
Ogles, BrandonRYes
Parkinson, AntonioDAbsent or abstained
Potts, JasonDAbsent or abstained
Powell, JasonDNo
Powers, DennisRYes
Ragan, JohnRYes
Ramsey, BobRAbsent or abstained
Reedy, Jay D.RYes
Rudd, TimRYes
Rudder, IrisRYes
Russell, LowellRYes
Sexton, CameronRYes
Sexton, JerryRAbsent or abstained
Shaw, JohnnyDNo
Sherrell, PaulRYes
Smith, RobinRYes
Sparks, MikeRYes
Stewart, MikeDNo
Terry, BryanRYes
Thompson, DwayneDAbsent or abstained
Todd, ChrisRYes
Towns, Joe, Jr.DAbsent or abstained
Travis, RonRNo
Vaughan, KevinRYes
Vital, GregRYes
Warner, ToddRYes
Weaver, Terri LynnRNo
White, MarkRYes
Whitson, SamRNo
Williams, RyanRYes
Windle, John MarkDYes
Wright, DaveRYes
Zachary, JasonRYes

Tenn. Trucking Association decries GOP bill on COVID-19 rules as ‘anti-business’

The Tennessee Trucking Association is speaking out against the hastily assembled omnibus legislation aimed at trying to dial back COVID-19 mandates.

Senate Majority Leader Jack Johnson (R-Franklin) earlier this week specifically cited a story he had seen about the challenges facing the trucking industry in pursuing the legislation. But state Trucking Association President Dave Huneryager is asking for lawmakers to let them sort it out for themselves.

“We are hopeful that the federal administration will continue to allow trucking companies to manage their own operations, as has been the case over the past 18 months,” he said in the letter. “Whatever the final federal or OSHA rules may be, the trucking industry is a business that operates in interstate commerce and has to follow federal mandates.”

Huneryager also took issue with a plan to extend unemployment benefits to people fired for refusing to get vaccinated.

“We believe this is an anti-business policy and adopting anything like this would provide a reason for employees to draw unemployment compensation instead of working in full-time employment,” he wrote,

Here’s the full letter sent to all members of the General Assembly.

On behalf of the Tennessee Trucking Association and its 500 members that represent one out of every thirteen jobs in Tennessee, I am writing to you about issues that will be considered by the Tennessee General Assembly during the upcoming Special Session. TTA is an organization that has been in existence and active in legislative matters for more than 75 years and our industry is hopeful that you will sincerely consider some of the issues that are of major concern to our members as you proceed during the Special Session.

There have been many rumors circulating for weeks regarding the issues that will be addressed within the framework of the call of the Special Session. There have been numerous newspaper articles and other comments from members of the General Assembly related to issues that directly affect private businesses in Tennessee. Now that the Special Session has been called and legislation is being filed, TTA wanted to reach out to you with its concerns.

Fortunately, for years Tennessee has maintained an excellent reputation as a business-friendly environment, in large part through limited government intervention through laws, regulations, or taxes. The trucking industry is very appreciative that the legislature created this environment. For the past 18 months, the COVID-19 pandemic has presented the trucking industry with operational challenges that have never existed before now. Maintaining a safe working environment and being a key player in the movement of all cargo throughout the United States has been difficult to navigate. At this time, there is a supply chain crisis in this country that has placed an additional burden on the industry. Recruiting and keeping CDL truck drivers has never been more critical than it is now. The federal government is presently considering the imposition of COVID-19 vaccination mandates or weekly testing on all employers who have 100 or more employees.

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White House details how Biden plan would affect Tenn.

The White House is outlining how President Joe Biden’s Build Back Better program would affect Tennessee.

Here’s the full release:

President Biden’s Build Back Better framework will bring down costs that have held back families in Tennessee for decades by cutting taxes and making child care, home care, education, health care, and housing more affordable. These investments will provide new learning opportunities for children, help parents and especially working parents make ends meet, and position the economy for stronger growth for years to come. The framework will create good- paying jobs for residents of Tennessee, combating climate change, giving our kids cleaner air and water, and making America the leader in global innovation and 21st century manufacturing.

The Build Back Better framework will:

Deliver the largest investment in child care and early education in history.

• Provide access to affordable child care. Child care is a major strain for families in Tennessee, where the average annual cost of a child care center for a toddler is $9,998, meaning that a Tennessee family with two young children would on average spend 24% of their income on child care for one year. The lack of affordable options also makes it difficult for parents, and especially mothers, to remain in their jobs, contributing to the 21% gender gap in workforce participation between mothers and fathers in Tennessee. The Build Back Better framework will enable Tennessee to provide access to child care for 421,870 young children (ages 0-5) per year from families earning under 2.5 times the Tennessee median income (about $191,121 for a family of 4), and ensure these families pay no more than 7% of their income on high- quality child care.

• Provide universal, high-quality, free preschool for every 3- and 4-year old in America. Today, only 11% of the 165,717 3- and 4-year-olds in Tennessee have access to publicly-funded preschool, and it costs about $8,600 per year for those who can’t access a publicly-funded program. The Build Back Better framework will enable Tennessee to expand access to free, high-quality preschool to more than 148,048 additional 3- and 4-year-olds per year and increase the quality of preschool for children who are already enrolled. Parents will be able to send their children to the preschool setting of their choice—from public schools to child care providers to Head Start—leading to lifelong educational benefits, allowing more parents to go back to work, and building a stronger foundation for Tennessee’s future economic competitiveness.

Address the existential threat of climate change.

• Make the largest effort to combat climate change in American history. From 2010 to 2020, Tennessee experienced 40 extreme weather events, costing up to $20 billion in damages. The Build Back Better framework will set the United States on course to meet its climate targets—a 50-52% reduction in greenhouse gas emissions below 2005 levels by 2030—in a way that creates good-paying union jobs, grows domestic industries, and advances environmental justice. The framework represents the largest ever single investment in our clean energy economy—across buildings, transportation, industry, electricity, agriculture, and climate smart practices in our lands and waters. And the framework will create a new Civilian Climate Corps that will enlist a diverse generation of Tennesseans in conserving our public lands, bolstering community resilience, and addressing the changing climate, all while putting good-paying union jobs within reach. In clean energy and in other sectors, the Build Back Better framework will also strengthen domestic manufacturing and supply chains for critical goods, benefiting American businesses, workers, consumers, and communities.

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Ford concerns about COVID-19 bill referred to lawmakers

The Memphis Regional Megasite.

Ford Motor Co., which just last week received the glowing praise of a vast majority of state lawmakers when they approved an $884 million incentive package for the automaker to build a new plant at the Memphis Regional Megasite, apparently isn’t so thrilled about efforts to outlaw mask and vaccine mandates by private employers.

Word spread around the legislature that Ford had called Gov. Bill Lee to register its complaints. But the governor has famously declined to get involved in the special session, perhaps fearing the very situation that lawmakers now seem to be putting the state in.

Officially, the governor’s office isn’t saying much.

“We have heard from a number of businesses and groups regarding proposals, and we have told them to reach out directly to legislators with their concerns,” said Lee spokeswoman Laine Arnold, adding that other automakers in Tennessee have also raised concerns.

UPDATE: The Tennessee Lookout reports a Ford official sent a text message to senators saying the company worries about being barred from requiring its employees from wearing masks.

Sen. Page Walley, R-Bolivar, alluded to Ford’s concerns in a committee meeting Friday.

“I’m very concerned we don’t adversely impact that with this legislation and what Ford is attempting to achieve and what they say has been critical for them to be able to manage their operations and stay open in other parts of the state with their ability to utilize masking requirements,” the Lookout quoted Walley as saying.

“I’m not going to be comfortable unless we have a plan on how we’re going to address this.”

New TNJ edition alert: A deep dive into the case against Kelsey

Sen. Brian Kelsey (R-Germantown), right, confers with then-Rep. Matthew Hill (R-Jonesborough) on the House floor in Nashville on April 30, 2019. (Erik Schelzig, Tennessee Journal)

With the special session on dialing back COVID-19 restrictions still churning away, this week’s edition of The Tennessee Journal takes a deep dive into the indictment on the indictment of state Sen. Brian Kelsey, including:

— Details of the alleged conspiracy and our best estimates about the identities of the unnamed coconspirators and other people named in the complaint.

— An apparent split between longtime friends Kelsey and ousted Rep. Jeremy Durham.

— A look at the legal team representing Kelsey and Josh Smith, the owner of the private Standard club in Nashville.

— A primer on some of Kelsey’s greatest hits that gave him the nickname “Stuntbaby of Germantown.”

Also: An overview of the latest special session and Jack Johnson’s acknowledgement that it goes against “the tenets that we’ve held very sacred,” Bill Ketron pays his $135,000 fine, and no more take-home whiskey bottles at receptions.

As always, access your copy of the TNJ here or subscribe here.

NFIB urges vote against COVID-19 bill, warns it will score support in ratings

Sen. Jack Johnson (R-Franklin) and Rep. Mark White (R-Memphis) attend an NFIB meeting in Nashville on Feb. 21, 2019). (Erik Schelzig, Tennessee Journal)

Voting in favor of the omnibus bill seeking to clamp down on COVID-19 mandates will negatively affect lawmakers’ ratings by the state chapter of the National Federation of Independent Business, according to a letter sent to each member on Friday morning.

Votes on the bill are scheduled for later in the day.

Here’s the full NFIB letter:

Good morning, Members of the 112th Tennessee General Assembly.

NFIB asks for your vote of NO on HB 9077/SB 9014.  NFIB plans to include this vote in our 2021-2022 Voting Record report to NFIB members.

NFIB is strongly opposed to any new causes of action, which are in the amendments to HB 9077/SB 9014. This would be a very inopportune time for small businesses, who are dealing with a severe labor shortage, rising inflation and significant supply chain issues, to face potential litigation. NFIB is concerned several COVID-19 mitigation measures by an employer could be grounds for a private right of action. We understand the views from all sides on this issue, particularly with potential pending federal overreach (please read our letter to USDOL Labor Secretary here). However, we oppose HB 9077/SB 9014, which is consistent with our previous positions on new private rights of action.  Our previously shared letter is attached.

NFIB also is concerned with Section 14-6-101 in both amendments under Chapter 6-Miscellaneous.  NFIB shares the concerns of our Department of Workforce & Labor Development and other groups that if the legislation passes as drafted, the federal government would soon take over regulatory enforcement of various labor laws in Tennessee. Specifically, as Commissioner McCord testified, OSHA would take over TOSHA.  For background, the Occupational Safety and Health Act of 1970 authorizes states to establish their own occupational safety and health plans and preempt standards established and enforced by Fed OSHA. OSHA must approve state plans if they are “at least as effective” as OSHA’s standards and enforcement. Currently, 22 states have plans under this system, including Tennessee. Over the last decade, NFIB has received almost no complaints from our members regarding TOSHA overreach.  If HB 9077/SB 9014 were to pass, as drafted, NFIB is concerned many OSHA fines will double and a more adversarial system would result for Tennessee’s small businesses, again at an inopportune time.

Thank you for you support of small business, and please contact me directly with any questions.  Jim    

Jim Brown

Tennessee State Director

Here is the GOP’s omnibus anti-COVID 19-restrictions bill

Senate Majority Leader Jack Johnson (R-Franklin) attends a meeting on Oct. 18, 2021. (Erik Schelzig, Tennessee Journal)

Republicans lawmakers are pushing to outlaw COVID-19 vaccine requirements for customers and employees and coming closer to banning mask mandates in schools. Senate Majority Leader Jack Johnson (R-Franklin) in introducing the omnibus amendment acknowledges many elements are “contrary to the tenets we hold sacred” as far as pro-business polices are concerned. But Johnson says current circumstances require a special response.

Here’s the amendment:

AMEND Senate Bill No. 9014 House Bill No. 9077*

by deleting all language after the enacting clause and substituting instead the following:

SECTION 1. Tennessee Code Annotated, is amended by adding the following as a new

title:

Title 14 – COVID-19

Chapter 1 – General Provisions

14-1-101. Definitions.

As used in this title, unless the context otherwise requires:

(1) “Adverse action” means to:

(A) Discriminate against a person by denying the person employment, credit, insurance, access, products, services, or other benefits; or

(B) 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;

(2) “Applicant” means a person who has applied for employment with an employer;

(3) “Arising from COVID-19” means caused by or resulting from the actual, alleged, or possible exposure to or contraction of COVID-19, or caused by or resulting from services, treatment, or other actions in response to COVID-19, including, but not limited to:

(A) Implementing policies and procedures to prevent or minimize the spread of COVID-19; however, “arising from COVID-19” does not include implementing policies and procedures that violate this title;

(B) Testing;

(C) Monitoring, collecting, reporting, tracking, tracing, disclosing, or investigating COVID-19 exposure or other COVID-19-related information;

(D) Using, designing, manufacturing, providing, donating, or servicing precautionary, diagnostic, collection, or other health equipment or supplies, such as personal protective equipment;

(E) Closing or partially closing to prevent or minimize the spread of COVID-19;

(F) Delaying or modifying the schedule or performance of any medical procedure; or

(G) Providing services or products in response to government appeal or repurposing operations to address an urgent need for personal protective equipment, sanitation products, or other products necessary to protect the public;

(4) “COVID-19” means the novel coronavirus, SARS-CoV-2, and coronavirus disease 2019, commonly referred to as COVID-19, including any variant of SARS-CoV-2 or COVID-19;

(5) “COVID-19 vaccine” means a substance used to stimulate the production of antibodies and provide protection against COVID-19, prepared from the causative agent of COVID-19, its products, or a synthetic substitute, and treated to act as an antigen without inducing a COVID-19 infection

(6) “Employer” means a person, private business, or governmental entity employing one (1) or more persons within this state;

(7) “Face covering” means a protective covering designed to be worn over the nose and mouth to reduce the spread of COVID-19, but “face covering” does not include an industry required mask;

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Bill targeting prosecutorial discretion has massive loophole

The state Capitol on March 16, 2020. (Erik Schelzig, Tennessee Journal)

House and Senate Republicans are charging ahead with a bill aimed at Nashville District Attorney Glenn Funk for refusing to prosecute certain crimes, like possession of small amounts of marijuana or refusing to post signs warning about transgender people being to use bathrooms of their choosing.

Under the bill advancing Thursday, the courts could be petitioned by the state attorney general to insert a special prosecutor to bring charges in cases where a locally elected prosecutor “categorically” refuses to do so without considering the facts in each case.

Supporters say the bill does nothing to prevent a prosecutor from declining to bring charges in individual cases based on a variety of factors like lack of evidence, a bad police search, or even a plea agreement.

But the legislation doesn’t appear to have clear handle on how the issue could be forced if someone like Funk were to say, “Fine, we won’t categorically rule out prosecutions,” and then promptly decline to bring charges in any of the relevant cases.

The fact is that no prosecutor around the state has the resources to bring charges in every single instance of minor drug possession. And the price tag for requiring them to so would likely be prohibitive. So, Republicans upset that the Democratic district attorney in Nashville is happily thumbing his nose at them want to seek retribution through legislation.

But the likeliest outcome is some slight variations in what he says. Either that, or Funk simply continues to thumb his nose at GOP lawmakers. He is up for re-election in August, after all.

Business groups to lawmakers: Don’t do it

The state Capitol on March 16, 2020. (Erik Schelzig, Tennessee Journal)

A group of business associations including local and state chambers of commerce are urging Tennessee lawmakers not to pass legislation that conflicts with federal guidelines.

“Conflicting mandates will subject employers to potentially crippling litigation costs through new causes of action at both the federal and state levels,” the groups say in the letter. “We respectfully urge you to OPPOSE any proposals that have the potential to damage our state’s accelerating economic recovery or economic development efforts.”

Here’s the full communique:

Members of the Tennessee General Assembly: 

On behalf of the trade associations, businesses, and nonprofit associations listed below representing a variety of industry sectors which include large, medium, and small employers across our great state, we write to you regarding our concerns with legislation to be considered during the Third Extraordinary Session convened on October 27, 2021. The call of the special session notes that some policies and procedures implemented by private and nonprofit businesses and organizations during the COVID-19 pandemic, starting with a State of Emergency issued in Tennessee on March 12, 2020, will be considered. 

First, we acknowledge that our employees–your constituents–are our most important asset. Many businesses are implementing policies regarding employee vaccination, testing and masks with a view to achieving compliance with either Federal Executive Orders or recently announced Occupational Safety and Health Administration (OSHA) emergency standards, which are expected to be released in the near future. Tennessee has a significant number of businesses designated as federal contractors and such businesses must work diligently to follow Executive Orders and/or applicable OSHA guidelines or risk substantial damage to their businesses. In addition, some businesses have made the decision that their workforce requires vaccination because of special risks to their employees or the customers that they serve. Overall, our businesses are working to comply with the federal requirements until such time that the requirements are withdrawn, overturned, or repealed.  

We must express our opposition to any proposed legislation that may conflict with these federal requirements and overly complicate or conflict with employer operations during the pandemic. We oppose any proposals that outright remove the ability of an employer to determine their own vaccination and mask policies. We believe that any legislation of this kind is unnecessary government intrusion into the operation of our businesses. Tennessee’s strong business climate is based on this fundamental principle, including the state’s employment-at-will law. We ask that you not place additional mandates on our employers, thus placing them in an impossible position between federal and state mandates. Conflicting mandates will subject employers to potentially crippling litigation costs through new causes of action at both the federal and state levels. We respectfully urge you to OPPOSE any proposals that have the potential to damage our state’s accelerating economic recovery or economic development efforts.  

In closing, we thank you, as a leader of our exceptional state who has worked to ensure our economy and business climate have excelled above our peer states during this challenging time. We know that you recognize the difficult position that businesses are in and greatly appreciate your commitment to Tennessee’s continued economic growth.  

Sincerely,

American Academy of Pediatrics – Tennessee Chapter 

American Cancer Society Cancer Action Network

American College of Obstetricians and Gynecologists, Tennessee Chamber

American Council of Engineering Companies of Tennessee (ACEC Tennessee)

Associated Builders and Contractors- Greater Tennessee Chapter

Blount Partnership

Center for Nonprofit Management

Chattanooga Area Chamber of Commerce

Community Health Systems

Discovery, Inc.

Greater Memphis Chamber 

HospitalityTN

Kingsport Chamber 

Lawrence County Chamber of Commerce

Momentum Nonprofit Partners

Nashville Area Chamber of Commerce 

Nashville Biosciences

NFIB

St. Jude Children’s Research Hospital

Tennessee Business Roundtable

Tennessee Chamber of Commerce & Industry

Tennessee Community Organizations

Tennessee Fuel and Convenience Store Association

Tennessee Grocers & Convenience Store Association

Tennessee Independent Colleges and Universities Association

Tennessee Manufacturers Association 

Tennessee Retail Association

Tennessee Trucking Association

Vanderbilt University Vanderbilt University Medical Center