Tennessee’s Efforts to Reopen the State

April 2020

April 29, 2020

I. Background

Tennessee Governor Bill Lee signed a series of Executive Orders related to the COVID-19 crisis between March 22, 2020 and April 13, 2020. The earliest, Executive Order 17, banned gatherings of 10 or more people, closed restaurants and bars to dine-in service, closed gyms and fitness centers, and restricted visitation to nursing homes, retirement homes, long-term care and assisted living facilities. Executive Order 18 prohibited non-essential medical procedures. Executive Order 21 extended the provisions of Executive Order 17, and closed “close-contact personal services” as well as entertainment and recreational gathering venues.

On March 30, 2020 Governor Lee signed Executive Order 22, “urging” Tennessee citizens to stay at home unless engaged in Essential Activities or Essential Services. The Order was specifically “not a shelter-in-place mandate.” Executive Order 22 also closed all non-essential businesses to public use.

On April 2, 2020, Executive Order 23 was signed to explicitly require Tennessee citizens to stay at home. Executive Order 23 modified Executive Order 22, and was effective until April 14, 2020.

On April 13, 2020, Governor Lee signed Executive Order 27 to extend the provisions of Orders 17, 21, 22 and 23, including the stay at home requirement, until April 30, 2020.

However, by April 24, 2020, Governor Lee began the process of re-opening establishments closed by these Executive Orders. In two separate orders, Governor Lee established new rules for restaurants, and encouraged employees to return to work and businesses to reopen. Both of those orders will be discussed in further detail below.

II. Efforts to Reopen State Commerce

A. Suspension of Previous Orders Related to Restaurants

As mentioned above, Governor Lee’s efforts to ease existing stay at home requirements began on April 24, 2020. Executive Order 29, “An Order Amending Executive Order No. 17 to Reopen Dining in Restaurants” amends Orders 17, 21, 22 and 23. Executive Order 29 reopens restaurants for dine-in service effective April 27, 2020 – although Executive Order 27 previously ordered restaurants to remain closed to dine-in service until April 30, 2020.

Restaurants that reopen under Executive Order 29 are “expected” to follow guidance provided by the Governor’s Economic Recovery Group. If not, additional health and safety orders may be issued.

In contrast to previous Orders, Executive Order 29 expressly supersedes any emergency order, health order, and all local orders. County health departments in Davidson, Hamilton, Knox, Madison, Shelby and Sullivan Counties may issue additional restrictions or maintain current restrictions related to the containment of COVID-19. However, health departments may not close restaurants to dine-in service unless the restaurant is “independently prohibit[ed]” from operation. 

The Order does not reopen bars, and extends the previous Orders to also close limited service restaurants as defined in T.C.A. § 57-4-102(22), nightclubs, and similar establishments to dine-in service. The Order does not modify the provisions of any of the other industries affected in Executive Orders 17 and 21, including gyms and fitness centers, restricted visitation to nursing homes, retirement homes, long-term care and assisted living facilities, “close-contact personal services,” or entertainment and recreational gathering venues.

B. Suspension of Previous Stay at Home Requirements

Governor Lee signed Executive Order 30, “An Order Allowing Tennesseans to Return to Work Safely While Encouraging Continued Adherence to Health Guidelines to Limit the Spread of COVID-19,” on April 28, 2020.

Executive Order 30 expressly allows Tennessee employees to return to work. The Order states, “[p]ersons are encouraged and permitted to return to work consistent with the provisions of this Order and while following the Health Guidelines to the greatest extent practicable; provided, that all employers and businesses are strongly urged to take steps to the greatest extent practicable to equip, encourage, allow, or require employees to work remotely or via telework from home.” The Order is not limited to the Essential Activities or Essential Services listed in Executive Order 22.

The Order requires Tennessee citizens “who test positive for COVID-19 or who are suffering from COVID-19 symptoms” to stay at home except to receive medical care, until the CDC recommended period of home isolation is completed.

Employers and businesses are “strongly urged” to allow employees to work remotely, to ensure good hygiene, and to follow health guidelines. Businesses resuming operations under Executive Order 30 are “expected” to follow guidance provided by the Governor’s Economic Recovery Group. If not, additional health and safety orders may be issued.

Employers cannot require, or allow, an employee the employer knows has tested positive for COVID-19 to return to work until the employee has completed the CDC recommended period of home isolation.

Take-out and delivery alcohol sales continue to be allowed. A limited service restaurant as defined in T.C.A. § 57-4-102(22) may serve food to customers seated at tables.

C. Social Distancing Guidelines

Executive Order 30 reflects Governor Lee’s “trust[] and expect[ation]” for Tennessee citizens to limit non-essential activity and follow health guidelines. This includes social distancing, personal hygiene, remaining home when sick, working from home “whenever possible,” “avoiding discretionary travel and social gatherings,” and “avoiding visitation or close contact with vulnerable persons or those who are sick.”

Executive Order 30 “encourage[s]” Tennessee citizens to continue to stay at home and minimize in-person contact unless “engaging in critical activities such as employment or occupational activities, activities integral to health and safety, obtaining supplies or services, engaging in permitted outdoor activity, caring for or visiting family or friends, visiting a place of worship, or travel associated with such activity.” The Order also “strongly urge[s]” wearing face coverings.

The Order extends the prohibition of “social or recreational gatherings” of 10 or more people. The Order clarifies places of worship are not closed, and weddings and funerals are not prohibited; nor are these social gatherings. However, the Order “strongly encourage[s]” online worship services, and weddings and funerals to be either postponed or “attended only by close family members.” The Order also extends the prohibition of visitation to nursing homes and similar facilities unless for critical assistance or visitation to residents receiving end-of-life care.

The Order encourages employers to: (a) implement appropriate policies and practices in accordance with state and federal guidance to facilitate social distancing, temperature checks, sanitation, use and disinfection of common areas, and reduce business travel; (b) monitor employees for symptoms and prohibit employees with symptoms from returning to work until cleared by a medical provider; and (c) cooperate with governmental contact tracing procedures for employees or customers who test positive for COVID-19.

D. Continued Closure of Certain Businesses

Executive Order 30 does not reopen, and specifically continues the closure of, “close-contact personal services” including barber shops, hair salons, waxing salons, threading salons, nail salons or spas, spas providing body treatments, body-art facilities or tattoo services, tanning salons, and massage-therapy establishments or massage services. Entertainment, recreational, and certain other gathering venues will also remain closed, including bars, nightclubs and live performance venues, bowling alleys, arcades, concert venues, sporting event venues, theaters, auditoriums, performing arts centers, and similar facilities, racetracks, indoor children’s play areas, adult entertainment venues, amusement parks, senior centers or equivalent facilities, and roller or ice skating rinks.

The businesses listed above may continue to engage in “minimal activities required to maintain such businesses” such as maintaining inventory, preserving physical plant, premises, and equipment, ensuring the security of the business or organization, processing mail, payroll, and employee benefits, facilitating employees of the business being able to work remotely from home, or conducting any functions related to such activities.

E. Preemption

Executive Order 29 expressly supersedes local orders regarding the opening or closure of all restaurants. Executive Order 30 prohibits local orders regarding dental or medical procedures, and reserves the right to promulgate such restrictions to the Governor. Dental and medical procedures remain restricted to emergency procedures, as mandated in Executive Orders 18 and 25, effective until April 30, 2020. In the eighty-nine Tennessee counties without a local health department, Executive Order 30 supersedes and preempts any emergency order, health order, or local order that contravenes or limits the Order. In Davidson, Hamilton, Knox, Madison, Shelby and Sullivan Counties, which have local health departments, the health department may issue regulations to permit or restrict the businesses affected by Executive Order 30, except no department can limit places of worship.

Executive Order 30 repeals Orders 17, 21, 22, 23, 27 and 29.

F. Effective Date

Executive Order 30 is effective on April 29, 2020 at 12:01am and remains in effect until May 29, 2020 at 11:59pm, “although it is anticipated that in the near future development of additional business guidelines will allow for reopening additional businesses safely, at which time this Order will be amended or otherwise revised accordingly.”

III. Guidelines for Businesses

Governor Lee’s Economic Recovery Group has published a series of guidelines for businesses, including General Guidelines for Business, Retail Guidelines, Restaurant Guidelines, and Exercise Facilities Guidelines. The guidelines provide best practices for employee relations, consumer protection, and business process adaptations. Generally, the Economic Recovery Group recommends employers:

  • Allow employees to work from home as much as possible;
  • Screen all employees reporting to work for COVID-19 symptoms;
  • Temperature screen employees;
  • Direct any employee who exhibits COVID-19 symptoms to leave the premises immediately;
  • Implement workplace cleaning and disinfection practices;
  • Mitigate exposure in the workplace;
  • Plan for potential COVID-19 cases;
  • Be aware of the provisions of the federal Families First Coronavirus Response Act;
  • Update the employee illness policy or create a COVID-19 specific policy;
  • Limit self-service options; and
  • Post extensive signage on health policies.

Visit our COVID-19 Hub for ongoing updates.