Can A Live Music Venue Require Proof Of Vaccination In Tennessee?

Waller Lansden Dortch & Davis, LLP
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Waller Lansden Dortch & Davis, LLP

We are humming our favorite COVID song by Luke Combs while we make this post:

“There will be light after dark, someday when we aren't six feet apart.”

The new COVID-19 law that became effective November 12, 2021, restricts private businesses from requiring COVID-19 vaccination proof.

The new law does not prohibit requiring a test to enter a concert.  Venues that feature live music or other “performances, concerts, exhibits, games, athletic events, or contests” may require a negative COVID-19 test. 

Here is the important part.  The venue can also offer patrons the option of providing proof of vaccination or antibodies - rather than providing the test.

In other words, a venue can require proof of vax, but only as analternative to COVID testing.

What should signage and social media say about the COVID policy?

The following language is a reasonable interpretation of the law:

Patrons attending a show must provide a negative COVID-19 test, or you can provide proof of vaccination or antibodies.

Keep in mind that the new law is ambiguous and the state may issue guidance or rules that change how it is applied.  This could change what your business can require and how it can word its policies. 

What kinds of businesses can screen patrons for COVID?

The law states that “places of entertainment” may screen admission. Tenn. Code Ann. § 47-25-512(4)(B) defines “places of entertainment” as an, “entertainment facility in this state, such as a theater, stadium, museum, arena, amphitheater, racetrack, or other place where performances, concerts, exhibits, games, athletic events, or contests are held.”

If your business features live music or other “performances, concerts, exhibits, games, athletic events, or contests,” it may require a negative COVID-19 test.

We read the law as potentially applying to concert venues, bars, breweries, theaters and other establishments with live entertainment.  We see the law as applying to a broad group of businesses.

For example, theater probably means a venue that hosts concerts or plays. There is also a strong argument that a movie theater could fall under this category as well. 

What about recorded music? Playing background music in a restaurant probably does not make the cut. But a DJ playing vinyl on a stage probably does make for a place of entertainment.

When can I screen for COVID?

The open question is should you screen everyone all the time, regardless of whether a patron is attending for a show or just to enjoy a meal or a pint?  Or only screen for COVID when your venue has entertainment?

There is no clear answer.

Drinking beer, having a meal, attending a meeting and other social or business purposes probably do not constitute entertainment under the law. That said, the law states that “places of entertainment” may screen admission, which could be read to include screening everyone all the time, regardless of whether a patron is attending for a show or just to enjoy a pint.

You could take the position that as a place of entertainment, you can screen all guests all the time, but that would require screening someone showing up for a pint or dinner, even when there isn’t entertainment.

You could also take the position that you only screen guests when you are having entertainment.

Stay tuned for more banter on this subject as we learn more.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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