Education Funding Formula Unveiled, Harwell Enters 5th District Race, and Redistricting Lawsuit Filed

With lawmakers expressing a desire to adjourn the 2022 regular session by mid-April and some committees beginning to announce final calendar dates, it’s starting to feel like the General Assembly is rounding into form, although it appears that the overall volume of legislation traveling through committees is somewhat less than in recent sessions. The legislature has reached the halfway point for budget hearings in committees, and more bills are finding their way to committee agendas. The Cordell Hull building took on a “pre-pandemic” feel this week, with crowded hallways and gathering areas due to a number of groups having “Days on the Hill,” as well as an increasing volume of legislation moving through committees.  

Lee Administration Releases Performance Based Education Funding Formula

Governor Bill Lee’s long-awaited, student-based education funding formula — known as the Tennessee Investment in Student Achievement (TISA) Act — was unveiled last week, reflecting the Governor’s cornerstone legislative initiative for the 2022 session. At a press conference at the Capitol, the Governor described the plan as “student centered and student focused,” and one that works for families, teachers and the state. In the process, the Governor described the current BEP formula as cumbersome, bulky and outdated, while arguing that the new plan would support students in a transparent way. “The Tennessee Investment in Student Achievement formula will be a powerful tool the state can use to ensure we are putting all students on a path to success,” stated Governor Lee. “By serving our students well and giving the public greater insight into how their tax dollars are supporting students, the TISA represents an exciting opportunity to improve educational outcomes, strengthen our workforce and propel Tennessee forward.” The Governor also argued that “we need to invest more in our public schools in our state, but we don’t need to invest in a bulky, out of date formula. The BEP formula doesn’t deserve a billion dollars to be put in it, but our students do deserve a billion-dollar increase for public education.”

The plan is the culmination of a process that began in October, with numerous stakeholders convening to provide input to various committees.

Beginning in the 2023-24 school year, the TISA formula will invest $9 billion in total education funding, including state and local funds, and includes $1 billion in new recurring state funds and $750 million in one-time state funds this year. Under the proposed formula, local education districts would receive more funding under TISA than they would under the current BEP funding formula, and the total local contribution would not increase for four more years. According to a Tennessean report, under the plan Memphis-Shelby County schools would see a 12% funding increase, Nashville-Davidson County would see a 7% increase, and Knoxville-Knox County would see a 12% increase.

The plan also features a base funding of $6,860 per pupil, weighted for economically disadvantaged students, and anywhere from $1,000 to $10,000 in additional funding for students with unique needs. There are also various allowances made for students in grades K-3, and also for fourth grade literacy programs.

As for specific price tags, the TISA formula proposes $6.6 billion for base funding for every K-12 public school student; $1.8 billion in additional funding allocated based on weights to address specific student needs; $376 million in direct funding to support learning opportunities beyond the classroom, like tutoring; and $100 million in outcomes funding to be awarded based on student achievement. Under this formula proposal, $125 million will be allocated to fund an increase in existing teacher salaries this fiscal year, which will carry over to the TISA base component for salaries. In addition, this TISA formula allocates additional education funding for fast-growing school districts with at least 2% growth from the prior school year. The TISA Act also has reporting and district accountability requirements, including an annual report prepared by the Department of Education to be delivered to the General Assembly that details academic analysis, accountability report cards, local district TISA review requests, and a review by the state Comptroller. Additionally, local school boards will have an opportunity to provide input on student achievement each school year and describe how the local budget and expenditures enable districts to progress student outcomes.

The bill must now face the crucible of the legislative process, where seven different committees will vet the proposal before it reaches the respective floors. Some lawmakers have expressed reluctance to pass such significant legislation in a fairly compressed time frame, especially with the widespread desire to adjourn in mid-April and return home to hit the campaign trail and familiarize themselves with what in many cases are decidedly different districts due to redistricting.

Harwell Enters the Race for Tennessee’s 5th Congressional District.

Last week, former state House Speaker Beth Harwell (R-Nashville) officially announced she will be running for the Republican nomination in Tennessee’s new look 5th Congressional District, joining an increasingly crowded field of candidates. Harwell, who became the first female Speaker in General Assembly history in 2011, stepped down from the post in 2018, when she decided to leave the House and pursue the GOP nomination for Governor. Harwell is a longtime Nashville resident and currently serves on the board of the Tennessee Valley Authority. In entering the race, she joins the likes of Trump-endorsed former State Department aide Morgan Ortagus, former National Guard Brigadier General and Nashville attorney Kurt Winstead – who also joined the race last week — and businessman Baxter Lee.

Tennessee Sued Over New State Redistricting Maps

Last Wednesday, three private citizens filed suit against Gov. Bill Lee, Secretary of State Tre Hargett, and Tennessee Coordinator of Elections Mark Goins, alleging the General Assembly unconstitutionally drew and passed the new state House and Senate district maps to further entrench the Republican supermajority. The lawsuit is backed by the Tennessee Democratic Party and was filed in Davidson County Chancery Court. While the suit does not address the General Assembly’s new congressional district lines, which divide Nashville three ways, that map is expected to be the subject of additional litigation in the future.

Looking Ahead

With lawmakers targeting a mid-April adjournment, the next several weeks will be fast and furious in terms of legislative activity, with many bills seeing their fate determined over the next 3-4 weeks.

What Can Employers Do Now While OSHA’s COVID-19 Vaccination and Testing Rules Are Temporarily Suspended?

November 2021

Employers now have OSHA’s long-awaited Emergency Temporary Standard (ETS) mandating COVID-19 vaccinations or testing for some workers, but much uncertainty remains about how and whether employers should take action at this point. Hours after OSHA issued the ETS, numerous states and private organizations asserted legal challenges to it — in the U.S. Courts of Appeals for the Fifth, Sixth, Seventh, Eighth, Eleventh, and D.C. Circuits — and the Fifth Circuit subsequently issued a nationwide temporary suspension of the ETS.

The Policy Basics

The ETS requires certain employers to implement a written mandatory policy requiring employees to be “fully vaccinated” (as defined by the ETS). The mandatory vaccine policy may only exempt those employees: (i) “for whom a vaccine is medically contraindicated”; (ii) for whom “medical necessity requires a delay in vaccination”; or (iii) “who are legally entitled to a reasonable accommodation under federal civil rights law because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.”

As an alternative to the absolute vaccine mandate, the employer may implement a written policy providing that employees must either be fully vaccinated or be subject to rules requiring regular testing for COVID-19 and wearing a face covering at work (subject to some limited exceptions). This alternative is generally consistent with EEOC guidance that, if an employee does not want to comply with an employer-initiated vaccine mandate, “as a reasonable accommodation, an unvaccinated employee entering the workplace might wear a face mask … [or] get periodic tests for COVID-19 ….”

Compliance Deadlines

The ETS imposes two compliance deadlines: 1) December 6, 2021, for compliance with all sections of the ETS except for provisions requiring COVID-19 testing of unvaccinated or partially vaccinated workers; and 2) January 4, 2022 for compliance with the COVID-19 testing provisions for those workers. In other words, the covered employer must adopt a policy and confirm the vaccination status of all employees by December 6, and then, if the employer’s policy allows, begin mandatory testing for COVID-19 for unvaccinated or partially vaccinated workers by January 4, 2022.

These deadlines, however, are now in flux as a result of the Fifth Circuit suspension. The DOJ has asked the Fifth Circuit to lift this suspension order and informed the Fifth Circuit that, because there are challenges pending in other circuit courts, the consolidated cases must be heard by a single circuit court randomly selected by the Judicial Panel on Multidistrict Litigation. The DOJ expects the panel to select the circuit court for the consolidated cases by November 16. It is highly unlikely the selected court will issue a decision before December 6, the effective date for the majority of ETS’ provisions.

So what are employers supposed to do now?

The first order of business should be to determine whether the employer is even covered by the ETS if the courts lift the stay or uphold the standard.

The ETS applies to: all employers with a total of 100 or more workers, company-wide, at any time the ETS is in effect. Temporary and seasonal workers are counted as “employees” for purposes of coverage, but independent contractors are not.

The ETS does not apply to: federal contractors and subcontractors subject to President Biden’s Executive Order 14042 or workplaces where employees provide healthcare services or healthcare support services. OSHA also does not have jurisdiction over public employers such as state and local governments.

Many employers might be subject to state versions of OSHA instead. OSHA’s jurisdiction extends directly in 29 states, while other states, including California and Michigan, have their own federally approved workplace safety agencies. Those states have until February 2022 to adopt their own version of the vaccine mandate that is at least equal to the ETS requirements. These states could adopt a tougher version of the ETS and lower the coverage threshold to require compliance by smaller size employers.

Best Practice

Given the federal court stay, businesses covered by the ETS are not legally obligated to adopt an ETS-compliant policy by December 6. But as a best practice, an employer certainly could make a business decision to do so based on the reasonable chance the courts will uphold the ETS mandate. Some legal scholars and commentators are speculating that whistleblowers could play a large part in the enforcement of workplace vaccine rules. If a covered employer has not announced an ETS-compliant policy by the time the court process plays out, its own workers (or union representatives of those workers) could very likely file complaints with OSHA. Rather than scrambling at the last minute, and possibly facing inspections or fines, the prudent company would be prepared with a policy in place if the stay is lifted or if the court upholds the ETS on the merits.

The ETS is complex and has multiple requirements for employers. As always, it is best practice to consult with experienced employment counsel when implementing new policies and procedures.

The Debt Limit Deal

As the Bipartisan Infrastructure Bill and the Build Back Better Act slip into the legislative background, the debate over the debt limit takes center stage. The past few weeks have seen discussions on the topic, but it all came to a head this week as a deal to increase the debt limit until December 3^rd 2021 has been made.

Talks between Senate Majority leader Chuck Schumer and Senate Minority Leader Mitch McConnell began early this week with a proposal from Senator McConnell to raise the debt limit a specified amount until December. According to an anonymous Senate aide, the debt ceiling would be increased by $480 billion over that time period. While this temporary fix will work for a limited amount of time, the deal would still require Congress to act on the debt limit later this year.

Republicans insist that Democrats must include the debt ceiling increase in their proposed budget reconciliation bill, the Build Back Better Act, in order for it to be raised. Senator McConnell also stated that if Senate Democrats were to drop the proposed budget reconciliation bill altogether, increasing the debt limit would be something both parties could work together on. Democrats believe that the debt limit should be suspended or raised through a bipartisan effort as it has in previous years. This leaves Democrats with two options: wait and see if the Republicans will work to a bipartisan solution or change the chamber’s filibuster rule to allow for a simple majority vote. The second option of the two is unlikely to happen as it lacks complete support with Senate Democrats, along with mixed messages from President Biden.

We will likely see a vote on the debt limit deal by the end of the day today, but it remains to be seen what the next step will be. We’ll be following along on this subject and will keep you up to date with relevant updates. If you have any questions or concerns, please email Jeffrey.Brooks@arlaw.com or Kate.Reitz@arlaw.com.

Mandatory Vaccine Guidance Issued for Federal Contractors:

A Sneak Peek of What’s to Come for Private Sector Employers?

September 2021

President Biden’s announcement earlier this month that private sector employers with 100 or more employees will be required to have all employees either vaccinated or tested weekly has left many employers scrambling. This is especially true for those who were making vaccinations voluntary for their workforce up until this point.  In anticipation of what’s to come, many employers are now scratching their heads and wondering:

By what date will private sector employees need to be vaccinated? 

Does the employer bear the cost of any required weekly testing for those who remain unvaccinated? 

How will the mandate be enforced and by whom?  

How is this legal?

If you’ve been asking yourself these questions, you’re not alone. Unfortunately, until OSHA issues its Emergency Temporary Standard on the subject, it is unclear what the parameters will be for the President’s vaccination mandate for private sector employers. As to timing of implementation, if history is any indication, it could be several weeks, if not months. Even then, the Emergency Rule is going to be challenged in the courts, and the possibility of a nationwide injunction seems like a distinct possibility and could delay (or even derail) the President’s mandate. 

On Friday, September 24, the Biden administration very quietly issued COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors.  Is this a preview of what may be forthcoming for private sector employers? Possibly, and so while private sector employers await the issuance of OSHA’s Emergency Standard, it’s worth considering some of the highlights of the administration’s requirements for federal contractors:

• The vaccination deadline for federal contractors is December 8, 2021. 

• Federal contractors must designate one or more persons to implement and ensure compliance with the vaccination mandate.  These designees must monitor (at least weekly) whether the area where employees are working is considered a “high or substantial” or “low or moderate” area of community transmission (according to the CDC).  Different safety protocols will apply depending on which area you are located.  In the event there is a change from “high or substantial” to “low or moderate,” the employer must wait 2 consecutive weeks before there can be any change in applicable safety protocols. 

• The applicable protocols for fully vaccinated and not fully vaccinated workers must be clearly communicated to employees and visitors, g. through postings, signage, or flyers.   

• If employees are in a “high or substantial” area of transmission, they must continue to wear a mask indoors in common areas or shared spaces even if vaccinated.  The mask must be over the nose and mouth.  Social distancing is not required so long as employees are properly masked.  Some exceptions to masking apply for eating or drinking (and can maintain social distancing while eating or drinking); if an employee is alone in an enclosed office with the door closed; if a mask may get wet; or if employees are engaged in high intensity activities and wearing a mask would cause difficulty in breathing.       

• If you are in a “low to moderate” area of transmission, no mask is required if you are vaccinated, and physical distancing is not required. 

• Regardless of what area of transmission you are located in, if you are unvaccinated, you must maintain six feet of social distancing at all times, and wear a mask.  Even if outdoors, a mask is required if you are in crowded spaces or in close proximity to other unvaccinated people.  

• Proof of vaccination must be in the form of an official document, g. your vaccination card or medical record, and that documentation must be provided to the employer.  Photos and digital scans are acceptable.  An attestation by the employee and/or an antibody test is not considered valid proof of vaccination. 

• The vaccination mandate is subject to reasonable accommodations being made for individuals that cannot be vaccinated for legitimate medical or religious reasons.

• Some notable observations include: (1) Unlike the private sector, there is no option for weekly negative testing in lieu of vaccination; (2) The vaccination mandate applies even if the employee works remotely; (3) The vaccination mandate does not apply to workers located outside the United States; and (4) The vaccination mandate supersedes any state or local laws or ordinances that have more relaxed protocols in place. 

We will continue to monitor the situation and will provide an update once OSHA’s Emergency Standard is issued.  Only then will private sector employers with more than 100 employees truly know what will be required of them. 

In the meantime, employers should begin thinking about designating personnel to be responsible for ensuring compliance with the upcoming mandate.  And, so you are not in a time crunch when the time comes, it probably makes sense to begin drafting your mandatory vaccination policy, as well as any forms that could help drive the interactive process with employees who request medical or religious accommodations. 

As always, it is best practice to consult with experienced employment counsel when implementing new policies and procedures.

Guide to the Biden Administration and the 117^th Congress