Tennessee Lawmakers Were Warned COVID Bill Violated Federal Law Hours Before Floor Vote

Officials at Tennessee Governor Bill Lee's office warned lawmakers that their new bill limiting COVID-19 restrictions, which was signed into law two weeks later, was violating federal law.

According to records obtained by the Associated Press, Lee's legislative counsel warned the Republican-controlled legislature that the law is in violation of the Americans with Disabilities Act and that it could put the state at risk of losing federal funds.

The new law largely bars governments and businesses from requiring proof of COVID-19 vaccination and only lets schools and other public entities require masks in "dire public health situations."

The law is already seeing challenges in court, especially from parents of children with disabilities. Lawmakers tried to curb this by adding that the families can "request accommodations" for children with disabilities in which anyone within six feet of the child for longer than 15 minutes must wear a mask.

AP reported that Legislative Counsel Liz Alvey sent an email to state Senate Speaker Randy McNally's chief of staff, Rick Nicholson, and Luke Gustafson in Senate Majority Leader Jack Johnson's office at 12:44 a.m. October 30.

"Proposed ADA accommodation in the bill is a violation of the ADA and will put us at risk of losing federal funding," Alvey warned.

After some last-minute changes, the bill was passed about an hour later.

For more reporting from the Associated Press, see below.

Tennessee governor, Bill Lee
Emails obtained by the Associated Press show that Tennessee Governor Bill Lee’s office warned top legislative staffers that a bill limiting public health measures during the COVID pandemic would violate federal law. Above, Lee speaks to local media at the front of McConnell Elementary School on August 11, 2021, in Hixson. Troy Stolt/Chattanooga Times Free Press via AP, File

Lee, who is up for reelection next year, has since said there are still "some issues we need to work through." He has publicly mentioned concerns about how the law changes hospital visitation rules and what it may mean for the state's ability to control its own workplace regulation going forward. But the governor has expressed no concern publicly about compliance with the Americans with Disabilities Act.

It's not clear when or if Alvey gave her legal advice to the governor, who receives more legal guidance from his team before deciding whether or not to sign legislation. Lee's office did not directly address that question in its comments.

"The governor noted there were items that need to be fixed in the upcoming session, and we will be working with lawmakers," Lee's spokesman, Casey Black, responded in an email when AP asked why Lee enacted the legislation, citing the email in which his counsel had warned that it would violate federal law. "On balance, the bill is a response to the federal government's vast overreach."

U.S. District Judge Waverly D. Crenshaw, who is overseeing the legal battle, has since halted the prohibition against school mask mandates from being implemented and has specifically instructed the state's attorneys to explain how the new law complies with the ADA.

Crenshaw is scheduled to hear evidence in the case Friday morning. State Attorney General Herbert Slatery's office, representing Lee and his education commissioner, is now tasked with defending the way the law accommodates students with disabilities.

Republican legislative leaders, who called the three-day sprint session against COVID-19 mandates after the governor declined to do so, have lauded the final product despite objections from prominent business interests, school leaders and others.

The Senate speaker's office expressed no concerns about how the law accommodates people with disabilities, and downplayed the legal concerns raised by the governor's office.

McNally "does not agree with this particular objection and supports the law the governor signed," said McNally's spokesperson, Adam Kleinheider.

When the state enacted the new law, it was already under court orders blocking a policy by the governor to loosen school mask mandates. That executive order was upended when three federal judges ruled to block the parental mask opt-out option for students in three counties, siding with disabled children who sued under the Americans with Disabilities Act. Lee let the opt-out order expire when he signed the new law.

Crenshaw's ruling against the new law's school mask limits sparked praise from public health advocates but drew strong condemnation from some Republicans, who called moves to block state statutes limiting school mask mandates "judicial overreach."

"The legislation provides for parental choice regarding whether or not their children should wear a mask, while accommodating those who have special needs," Johnson said in a statement about Crenshaw's ruling.

Tennessee capitol, COVID-19 vaccine
Tennessee's General Assembly met for a special legislative session to address COVID-19 measures after Republican Governor Bill Lee declined to do so. Above, people holding signs in support of COVID-19 vaccinations sit in the gallery of the House Chamber on October 27, 2021, in Nashville. Mark Humphrey/AP Photo