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Making headlines with false hope is the TN GOP in a nutshell.

by Gary Humble

When people are hurting and in need of reprieve, there is no more dubious of a response to that outcry than the gift of false hope. And when it is done intentionally, especially by lawmakers who have sworn an oath to protect the liberties of people, it stirs up a righteous anger, as it should.

Making its way through the Tennessee legislature is House Bill 1867 sponsored by Rep. Jason Zachary and sponsored in the Senate by Sen. Jack Johnson of Williamson County. The public-facing message concerning this bill is that it will secure religious and medical exemptions for healthcare workers across the state. We know that many hospitals and medical facilities continue to outright deny any and all exemptions for healthcare workers, though the current requirements by CMS – recently upheld by the US Supreme Court – do allow for both religious and medical exemptions to be honored.

But the fact is that this bill does nothing to alter the current state of things, contrary to celebrations on social media and news outlets by Zachary. On more than one occasion while the bill was being discussed in the Civil Justice Committee of the House, Rep. Antonio Parkinson (a Memphis Democrat) rightly pointed out that this bill seemed to only reiterate what is currently part of the vaccination requirements laid out by the federal centers for medicare and medicaid services. And due to the fact that this bill simply keeps the status quo, Rep. Parkinson has continually voiced support for this bill in committee.

You have got to wonder why anyone would get excited about this bill since we know that hospitals denying religious exemptions are already breaking federal law. Why would these same hospitals now be concerned with breaking state law?

To make matters worse, HB1867 would codify a hospital’s legal right to deny a religious exemption in writing. At least now, when a hospital denies a religious exemption, there is a bit of legal ambiguity that would allow a court to rule in favor of a plaintiff being discriminated against albeit the courts have not yet protected those religious liberties here in Tennessee concerning vaccine mandates. But with the passage of this bill, as long as the employer has documented in writing a statement of denial, they are golden and protected by this new law. No opportunity for appeal and most likely, no relief in the courts for those being discriminated against.

Section 1(c)(2) of the bill specifically states that an employer shall not, “Deny a request for an exemption without providing a written statement explaining why the request was denied.”

The bill goes on to describe a cause of action for employees whose employers are found to have violated this section of the law. Also, it lays out a civil penalty of $10,000 per occurrence for those employers violating the law. On its face…bravo. But in reality, an employer providing a written statement to deny an exemption is not breaking the law and therefore, should incur no penalty.

What am I really saying here?

This bill is one big dog and pony show, and it is disgusting. There is not one matter of law that will change with the passage of this bill except to actually put into writing that an employer may as of right deny an employee’s religious exemption as long as it is done with a written statement.

But what you can count on when this bill does pass, and it will, is Governor Bill Lee making his rounds on national media about protecting the rights and religious liberties of healthcare workers and how Tennessee lawmakers have dealt a blow to the Biden administration’s egregious overreach into personal liberties. Great headline for a re-election campaign, isn’t it?

Here is a quick lesson in the current political landscape. When Senator Jack Johnson – also the Senate Majority Leader – carries a bill, it by default means that the Governor either supports the bill, or it is in fact a bill authored by his office. Why is that important here? Because now you know exactly who HB1867 really belongs to.

Keep in mind that the Governor’s office was vehemently against calling for a special session to address the COVID mandates. Governor Bill Lee continues to voice opposition to efforts to curb an employer’s ability to mandate these vaccines with the mantra, “we don’t regulate businesses here in Tennessee.” (paraphrasing)

And even now, the Governor’s office is flagging bills currently in the legislature that would secure some amount of medical freedom and communicating to legislators that the Governor does not support these measures as they are “restrictive” to business owners. More to come on that.

So, why would the Governor’s office support HB1867 now?

1. It does nothing.
2. It is going to make a great news headline.

This bill is dangerous. It is trash. It is political fodder. And it makes me sick.

Read the bill.

Watch the bill discussed in the TN House Civil Justice Committee.

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Despite federal court rulings, Tennessee's Comptroller is still issuing exemptions to federal contractors and allowing them to proceed with vaccine mandates.

You might remember that current Tennessee law allows federal contractors to be exempted from the recently passed bill which makes up Title 14 and protects employees from discrimination based on vaccination status for COVID-19. In other words, if Joe says you need a vaccine, Tennessee can't help you.

But when a Kentucky federal court issued a stay on Executive Order 14042 on November 30, 2021, Comptroller Jason Mumpower responded the very next day by suspending ALL previously granted exemptions to federal contractors. Here is the memorandum that was issued by his office. That was the right move and we celebrated that swift action.

No further press release was ever made by his office. 

However, just two weeks later, his office began reissuing these exemptions to select contractors. You can see the current exemption status of all federal contractors in Tennessee HERE. 

Why is Tennessee allowing these federal contractors to require vaccinations as a condition of employment when federal courts have continued to place a stay on any enforcement of Biden's Executive Order 14042?

TCA § 14-6-102 specifically states that an exemption to contractors may only be granted by the Comptroller if there would be

"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 US 11th Circuit Court of Appeals has also weighed in on this matter and has continued to issue the injunction on this executive order.

So, here are questions for the comptroller's office.

On what legal grounds are you now granting these exemptions to the law (Title 14) to federal contractors? How are you determining that their federal funding is in jeopardy? What section of any federal contract that would require employees have a vaccine is actually enforceable and could result in a loss of funding?

You can contact the Tennessee Comptroller’s Exemption Review Team at exempt@cot.tn.gov, or by phone at 615.253.3900.

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