Executive Order 2021-22 - Delays Testing and Vaccination Mandate
On September 3, 2021, Governor Pritzker issued Executive Order 2021-22, which extended the deadline for complying with the vaccination and testing mandates in previously issued Executive Order 2021-20 until September 19, 2021. Miller, Tracy, Braun, Funk, and Miller, Ltd. issued information on the previous Executive Order here. That information remains appropriate, other than the extended deadline for compliance until September 19, 2021.
However, as school districts have worked diligently to comply with these Executive Orders, many questions have been raised about potential exemptions from the vaccination and testing requirements. Because of the significant number of these questions, and the conflicting information being shared in various forums and by various stakeholders on this issue, we are providing additional guidance, based on what we know at this time about the commonly raised questions. As with so many pandemic-related matters, the issues remain fluid, and we all expect additional changes or nuances before final implementation based on further guidance from ISBE or IDPH, potential emergency regulations promulgated as anticipated under the Executive Order, or other sources of further information. Our hope is that the extension until September 19 will allow further guidance or regulations to answer the open questions on the implementation of the Executive Order.
At this point in time, the most common questions arise regarding the application of the Illinois Health Care Right of Conscience Act, 745 ILCS 70/1 et seq., a statute which protects individuals and entities from discrimination or certain other adverse actions based on their refusing to act contrary to their conscience or conscientious convictions in providing, paying for, or refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care. Over the decades of the Act’s existence, it has only been applied in health care-specific situations. The case law interpreting and enforcing the Act only involve the provision of health care by a health care facility or employees of health care facilities or other employees who perform health services (i.e. nurses, pharmacists, etc.). It has never been applied outside of the direct provision of health care.
However, there are broad provisions in the Act which have provoked comments and questions about their applicability to various mandates and mitigations put in place in response to the COVID-19 pandemic. First, there is not a reasonable reading of the Act that would be applicable to a mask mandate. Requiring a face covering be worn by students, employees, or visitors does not raise an issue under the Health Care Right of Conscience Act. Second, as to the vaccination mandate for school personnel, we need not reach a conclusion under the Health Care Right of Conscience Act because the Executive Order itself provides an exemption for vaccination based on sincerely held religious beliefs or a medical contraindication. That exemption, however, still requires that school personnel who are unwilling or unable to be vaccinated must submit weekly negative results of a COVID test.
Under the definition of “health care” under the Health Care Right of Conscience Act, “testing” is specifically included in the definition, and so we must pay close attention to the extent the Act might apply to testing requirements. As noted above, the Act has never been applied to employers outside of the direct issues of the provision of health care, and other laws have historically permitted employers (specifically school districts) to require testing for employees which is related to their employment and maintaining safety in the school environment. For example, the Illinois School Code has long provided for proof of physical fitness and freedom from communicable disease as a term and condition of employment:
School boards shall require of new employees evidence of physical fitness to perform duties assigned and freedom from communicable disease. Such evidence shall consist of a physical examination by a physician licensed in Illinois or any other state to practice medicine and surgery in all its branches, a licensed advanced practice registered nurse, or a licensed physician assistant not more than 90 days preceding time of presentation to the board, and the cost of such examination shall rest with the employee. A new or existing employee may be subject to additional health examinations, including screening for tuberculosis, as required by rules adopted by the Department of Public Health or by order of a local public health official. The board may from time to time require an examination of any employee by a physician licensed in Illinois to practice medicine and surgery in all its branches, a licensed advanced practice registered nurse, or a licensed physician assistant and shall pay the expenses thereof from school funds.
105 ILCS 5/24-5 [emphasis added]. In fact, until 2014, all school employees were required to submit to a tuberculosis test as a condition of employment. These provisions indicate the public policy of the State of Illinois that there may be conditions, including tuberculosis, where testing or screening may be required as a condition of employment.
Furthermore, the section of the Health Care Right of Conscience Act which applies to “employers and institutions”, 745 ILCS 70/7, only provides protections to “applicants”: there is nothing in Section 7 of the Act which applies to current employees. Rather, the only sections of the Act which might apply to current employees are Section 5 (“Discrimination”) and Section 8 (“Denial of Aid or Benefits”):
Sec. 5. Discrimination. It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner, including but not limited to, licensing, hiring, promotion, transfer, staff appointment, hospital, managed care entity, or any other privileges, because of such person’s conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.
745 ILCS 70/5.
Sec. 8. Denial of aid or benefits. It shall be unlawful for any public official, guardian, agency, institution or entity to deny any form of aid, assistance or benefits, or to condition the reception in any way of any form of aid, assistance or benefits, or in any other manner to coerce, disqualify or discriminate against any person, otherwise entitled to such aid, assistance or benefits, because that person refuses to obtain, receive, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any form of health care services contrary to his or her conscience.
745 ILCS 70/8.
Given the legislative history and track record of case law interpreting and enforcing the Health Care Right of Conscience Act, it appears that the intent was not to apply the Act outside of healthcare settings, and no one anticipated its application to mitigation efforts during a pandemic and during a declared disaster. However, the language is exceedingly broad.
Moreover, the Health Care Right of Conscience Act has an additional provision which makes this issue – from a risk analysis point of view – different from other pandemic-related challenges: a fee-shifting provision in the statute. Under the Act, if a plaintiff were to succeed, they would be entitled to recover the costs of the lawsuit and reasonable attorney’s fees. Such a right to attorney’s fees is an exception to the default rule in litigation.
For these reasons, school districts should proceed with caution if an employee asserts an exemption to testing under the Act unless or until there is further guidance or action by the State of Illinois which would resolve these ambiguities. Because there has been a two-week delay in the implementation of the Executive Order, school districts would be wise to defer implementation for those employees who have asserted a Health Care Right of Conscience Act exemption to testing until at least that time. Further actions by ISBE and/or IDPH could resolve these issues: for example, if there were emergency regulations requiring the testing, then school districts would have even clearer authority to require testing for COVID-19 consistent with the pre-existing language in Section 24-5 of the Illinois School Code.
We would also advise caution in counseling employees regarding these issues. As an employer, it would be inappropriate to provide employees a form or specific guidance related to their personally held beliefs and conscience. Under the Health Care Right of Conscience Act, “conscience” means “a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths” – and it would not be appropriate for an employer to suggest to employees any course of action to be taken with regard to the employees’ religious beliefs or moral convictions.
Given the current atmosphere regarding these new mandates, it is reasonable to conclude that there is going to be a lawsuit about the Health Care Right of Conscience Act, and until the state issues further guidance or regulations, the state is putting that target on school districts, resulting in school districts who are going to lose employees or get sued (or both). School districts need to see further guidance before making final decisions, including specifically whether acknowledging a religious exemption would lead ISBE to a recognition status consideration or other enforcement against a school district. The testing issue is not an actionable crisis until the end of the week of September 19 (the new deadline for the first week of testing) – and as fast as things are changing, schools would be wise to make sure the requirements are not going to change again until making decisions that cannot be reversed.
In the meantime, it is advisable to continue encouraging vaccination, to continue collecting proof of vaccination from school personnel, and to continue to plan for the implementation of the testing procedures for those school personnel who remain unvaccinated.