AVOID TRAPS FOR THE UNWARY WHEN IMPLEMENTING THE NEW COVID-19 PAID ADMINISTRATIVE LEAVE ACT

On April 5, 2022 Public Act 102-0697, colloquially referred to as the COVID-19 Paid Administrative Leave Act (hereinafter, the “Act”), became effective and placed a number of new Administrative burdens upon School Districts. While the essential requirements of the Act are widely known, School Districts should take care to avoid traps for the unwary which might otherwise cause considerable Administrative headaches.

First, the deadline for an employee to become “fully vaccinated” within five (5) weeks of April 5, 2022 applies only to the granting of retroactive leave prior to April 5, 2022 to which the employee is entitled. This deadline does not apply to paid Administrative Leave that is sought for paid Administrative Leave covering any period of time after April 5, 2022. Employees may access paid Administrative Leave for periods of time after April 5, 2022 so long as the employee is fully vaccinated at the time of the request for such leave, regardless of whether or not such full vaccination status was achieved before or after April 5, 2022.

Second, while the “Paid Administrative Leave” provisions of the Act allow School Boards to establish documentation requirements for the granting of such leave, School Boards much nonetheless take affirmative action, and not presume that such authority has been previously delegated to the District’s Administration.

Third, the Act’s provisions regarding the granting of retroactive sick leave does not define what documentation the School District may require for this purpose. While we suggest that School Boards can consider the same documentation for retroactive sick leave as they require for retroactive paid Administrative Leave, School Districts should remain mindful of the School Code’s continuing limitation upon requiring doctor’s notes for absences of three (3) days or less.

Finally, while the Act establishes no firm deadlines for School Districts to determine which employees are entitled to retroactive leave, Schools are well advised to addressing such possible reimbursement at their earliest opportunity in accordance with TRS and IMRF reporting guidelines rather than allow the issue to linger and potentially complicate future employment separation arrangements.

Posted 5-12-22

APPELLATE COURT REJECTS APPEAL BASED ON HEALTH CARE RIGHT OF CONSCIENCE ACT

On April 13, 2022 the 4th District Appellate Court of Illinois rejected an appeal of a Circuit Court decision wherein the Circuit Court refused to grant to public employees a Temporary Restraining Order (TRO) that would bar public employers from enforcing a workplace policy requiring all employees either to be vaccinated against COVID-19 or, alternatively, to undergo regular testing for COVID-19 (hereinafter, the “vaccination requirement”). The decision may have significant implications for Illinois school districts.

The Appellants argued that the vaccination requirement violated their consciences and that the Health Care Right of Conscience Act (745 ILCS 70/1 et. seq., hereinafter the “Conscience Act”) prohibits “discrimination” against the unvaccinated employees regarding matters of conscience. The Appellate Court disagreed, reasoning that the language of the Conscience Act is ambiguous as to its applicability to the vaccination requirement. The Appellate Court held that a recent statutory revision to the Conscience Act (Public Act 102-667), which clarifies that the Conscience Act does not apply to district-level vaccination requirements (among other mitigations) and which states that this legislative clarification “… is a declaration of existing law…”, could be used by the Circuit Court as an “…interpretive aid…” in reaching its decision to deny granting the TRO based on the Conscience Act.

This Appellate Court decision, while subject to a possible appeal to the Illinois Supreme Court, casts significant doubt on the ability of public employees and others to use the Conscience Act as a basis for objecting to the use of district-level Covid-19 mitigation efforts by public bodies. It should be noted, however, other Court challenges to such authority, based upon other legal theories including but not limited to the Governor’s mandates, continue to work their way through the Illinois Court system. Thus, Illinois public employers should continue to carefully monitor such developing legal authority.

Posted 4-14-22

SANGAMON JUDGE ISSUES TEMPORARY RESTRAINING ORDER UPON 146 SCHOOLS REGARDING STATE MASK, VACCINE, TESTING AND EXCLUSION MANDATES

On February 4, 2022 Judge Raylene DeWitte Grischow, Circuit Court Judge of the Illinois Seventh Judicial Circuit, issued a Temporary Restraining Order (TRO) prohibiting the 146 School Districts and State Defendants in the case from requiring student or staff masking, vaccinations, testing or the exclusion of “close contacts” of persons with COVID-19. The TRO resulted from the Judge’s rejection of the State of Illinois’ rationale for certain “Emergency Rules” issued by the Illinois Department of Public Health (IDPH) and Illinois State Board of Education (ISBE) in September of 2021 in support of the Governor’s Executive Orders mandating such virus mitigation measures.

 

While the TRO by its terms applies only to the State and the 146 Defendant School Districts (and their relationships to the named Plaintiffs), and thus does not directly affect other School Districts, its impact will likely be far reaching due to certain language contained therein. Specifically, the TRO states that other non-named School Districts “may” govern themselves based upon the position that the Emergency Rules promulgated by the IDPH and ISBE are “null and void”.

 

However, the TRO does not have State-wide effect and does not say that the Governor’s Executive Orders (separate and apart from the Emergency Rules) are “null and void”. Thus, such non-named School Districts currently remain subject to such Executive Orders. Districts that are not expressly subject to the TRO are in the same position they were prior to the TRO’s issuance, unless and until a TRO or other Court action specifically applies to such a District or the State of Illinois directs otherwise.

 

Districts that are expressly subject to the TRO will need to comply with its requirements immediately as do the Plaintiffs, and will need to decide how to proceed with regard to the remaining non-Plaintiff employees and students in their Districts. Notably the TRO did not overturn any arrangements set forth within the employee Collective Bargaining Agreements or Memoranda of Understanding entered into by and between the Defendant School Districts and their respective bargaining units, and did not prohibit such School Districts from attempting to implement their own local Board Policies (separate and apart from the authority of a State Rule or Mandate) as to such mitigation measures.

 

Thus, such Defendant Districts may continue to comply with such employee agreements and may endeavor to address, through Board Policy, how they will handle such mitigation measures with regard to non-Plaintiff employees and students. With regard to such local Board Policies the Court noted that the issue as to whether or not School Boards have statutory authority to mandate such mitigation measures was not yet before the Court. However, the Court clearly indicated that any such Board Policies would, even if otherwise permissible, be required to satisfy the employee and student Due Process protections set forth within the Illinois Department of Public Health Act.

 

Defendant Districts, and any other District contemplating a change to its current mitigation strategies, should consult with their legal counsel, medical experts and their insurance carrier regarding the ramifications of any response to the TRO.

 

The Illinois Attorney General is expected to file an appeal to the Illinois Appellate Court early this coming week, and has filed a motion with the Circuit Court to “stay” (postpone) the implementation of the TRO until after the Appellate Court rules on the matter. The Governor may likewise take one or more actions to address the matter. Thus, the matter will likely remain fluid and require daily monitoring over the near term.

 

We will continue to monitor the Court system’s handling of the TRO and the State’s response to such developments. Those with questions regarding the impact of the TRO are encouraged to contact their District’s school attorney in order to discuss the matter.

Posted 2-5-22

On June 27, 2022 United States Supreme Court ruled in the case of Kennedy v. Bremerton School District (hereinafter, the “ruling”) that a high school football coach who knelt at midfield after three football games in order to offer a quiet personal prayer should not have been the subject of disciplinary action by his employing public school district. The school district argued that his behavior conveyed the message that the school district tacitly and impermissibly endorsed his religious views. The Court disagreed, ruling that the school district’s disciplinary actions violated the employee’s right to free speech and free exercise of religion under the First Amendment of the United States Constitution.

The ruling makes clear that public employees retain a right to engage in private religious practices during the school day to the extent that they are not leading or encouraging student religious practices and are otherwise complying with neutral and/or generally applicable school policies. The factual circumstances upon which this ruling is based, however, leaves open many questions.

For instance, in reaching its ruling the Court stressed that no students of the coach’s school district participated in the post-game prayers on the fifty (50) yard line in question. The Court stressed that there was no competent evidence that any of the coach’s players felt tacitly coerced to participate in any such prayers. Further, the Court noted that the coach had informed the school’s administration that he would be willing to wait until after the students had cleared the field before engaging in his “quiet” post-game prayer.

Would the Court have reached a different result under different factual circumstances? Perhaps. If the coach had been leading his student-players in loud prayer after these games it appears likely that the Court would have supported the school district in disciplining the coach for such behavior. However, the Court has not clearly indicated how it would treat more mixed factual circumstances.

Going forward school districts will, based upon this ruling, want to be mindful of respecting the religious expressions of its employees to the extent that they do not directly interfere with their employment duties. At the same time school districts will want to continue safeguarding against creating any reasonable impression among its local community that it is endorsing a religious viewpoint.

 

Posted 6-28-22