Amendment to Health Care Right of Conscience Act Heads to Governor’s Desk

On October 28, 2021 an amendment to the Health Care Right of Conscience Act (HCRCA), S.B. 1169, passed both Houses of the General Assembly and was sent to the Governor’s desk for his signature. S.B. 1169 will likely have far-reaching consequences for Illinois public schools.

The HCRCA generally prohibits discrimination against anyone for their “…conscientious refusal to receive, obtain, perform…or participate in any way in any particular form of health care services contrary to his or her conscience.” The HCRCA further provides that “‘Health Care’ means any phase of patient care,…” This statutory language has led some to question whether the HCRCA might be intended to act as a basis for exemption from the Governor’s vaccination and testing mandates.

The new legislation endeavors to close the door on such interpretations by providing, in pertinent part, as follows:

“It is not a violation of this Act for any…public official,…, to take any measures or impose any regulations,…, intended to prevent contraction or transmission of COVID-19… It is not a violation of this Act to enforce such measures or requirements. This Section is a declaration of existing law and shall not be construed as a new enactment. Accordingly, this Section shall apply to all actions commenced or pending on or after the effective date of this amendatory Act.” The effective date of the new legislation is June 1, 2022.

The inclusion of language that this “…is a declaration of existing law…” appears to be a signal to Courts currently reviewing such lawsuits that the General Assembly does not think that the HCRCA has ever applied to vaccination or testing mandates. Thus, it remains prudent for school districts to handle any HCRCA exemption claims with great care (endeavoring to avoid either a lawsuit or an adverse action by the Illinois State Board of Education) until the new legislation becomes effective.

Districts should likewise continue to take similar care with regard to “religious” exemption claims, which have a different legal foundation (grounded upon the Illinois Human Rights Act) which is unaffected by S.B. 1168, and which can easily be combined and/or confused with HCRCA claims by parents and employees.

 

Those with questions regarding the impact of the new Emergency Regulations and guidance materials upon their School District are encouraged to call the attorneys at Zukowski Law Offices.
 

Posted 11-1-21

EMERGENCY REGULATIONS AND REVISED GUIDANCE ADDRESS MASKING, VACCINATIONS AND TESTING

On September 21, 2021 the Illinois Department of Public Health (IDPH) issued new Emergency Regulations regarding mask, vaccination and testing requirements. The IDPH and Illinois State Board of Education (ISBE) also updated their binding guidance regarding pandemic mitigation.

While all of the new documentation should be carefully considered in their entirety by K-12 Administrators, we would draw your attention to four (4) implications of the updated directives, the first of which also applies to colleges.

First, by differentiating between “exclusions” and “quarantines” the IDPH Emergency Regulations may reduce the risk of parental efforts to seek Temporary Restraining Orders (TROs) and significantly diminish permanent injunctions against K-12 schools and colleges regarding (a) the enforcement of mask, vaccination and testing mandates; and (b) K-12 exclusion requirements. While the continued issuance of TROs remain conceivable (because of a lower standard courts apply to issuing TROs), the granting of a permanent injunction against the enforcement of such mandates now appears to be more unlikely.

Second, together with the Governor’s recent Executive Order 24, the new guidance makes it clear that it is the K-12 school districts’ responsibility to identify and enforce situations requiring “exclusions”, which are now clearly distinguished from “quarantines”. Consequently, it is principally the school’s responsibility to engage in contact tracing for exclusion enforcement purposes. School districts can, however, continue to collaborate with their local health department when engaging in such efforts.

Third, the IDPH’s Emergency Regulations issued last evening may provide K-12 school districts with an additional argument for denying employee COVID-19 testing exemption claims based on the Illinois Health Care Right of Conscience Act (IHCRCA), since the Regulations set forth rules and requirements regarding such COVID-19 testing. While the applicability of the IHCRCA to COVID-19 testing mandates may be questionable, schools can now under certain circumstances be able to argue that they have authority to deny such exemption claims based upon Section 24-5 of the Illinois School Code, which allows schools to require employee health examinations and screenings “… as required by rules adopted by the Department of Public Health…”.

Finally, the updated  ISBE/IDPH “FAQ” document clarifies that K-12 “School Personnel” may choose not to be vaccinated due to a religious objection, and medical contraindication to the COVID-19 vaccine, “…or for any other reason”. Thus, whereas some interpreted the Governor’s Executive Order 22 to mandate that employees without a religious or medical exemption must be vaccinated or face disciplinary consequences, it is now clear that the mere refusal to be vaccinated should not, by itself, subject any employee to discipline.

Those with questions regarding the impact of the new Emergency Regulations and guidance materials upon their School District are encouraged to call the attorneys at Zukowski Law Offices.

Posted 9-22-21

EXECUTIVE ORDER CLARIFIES LEGAL AUTHORITY FOR VACCINATION/COVID TESTING IN PUBLIC SCHOOLS

On September 17, 2020 Governor J.B. Pritzker issued Executive Order 24 (“E.O. 24”), in which he for the first time directly ordered school districts to enforce exclusion requirements relating to known and suspected cases of Covid-19 infection and “close contact” situations. Schools had heretofore simply been required to abide by the determinations of the local health department (who are themselves informed by Illinois State Board of Education (“ISBE”) and Illinois Department of Public Health (“IDPH”) guidance documentation).

E.O. 24 changes this legal structure, and thereby appears to address the recent flurry of Temporary Restraining Orders (“TROs”) issued by Circuit Courts against school districts in which Courts found there to be a “fair question” of law as to whether or not the Governor’s prior requirements (issued through binding guidance from ISBE and IDPH) were inconsistent with the statute and regulations authorizing “quarantines”. Finding that there was a “fair question” of law and finding certain harm if the plaintiffs were correct, a handful of courts enjoined public schools within their jurisdiction from enforcing student quarantines for the duration of the TROs.

Now, such “exclusions” are expressly not “quarantines” but rather mandates based exclusively on the Governor’s authority under the Illinois Emergency Management Act (“IEMA”).  As a result, it may be more likely that some Circuit Courts will uphold such exclusions.

While “exclusions” under E.O. 24 appear to be closely aligned with “quarantine” and “isolation” requirements under prior guidance from ISBE and IDPH, we note that the definition of a “Probable Case” of Covid-19 has been changed to reference persons found to be Covid-19 positive as the result of an antigen “quick test”, which take approximately fifteen (15) minutes to complete and are viewed by some as less reliable than “PCR” tests.

Those with questions regarding the impact of this Executive Order upon their School District are encouraged to call the attorneys at Zukowski Law Offices.

Posted 9-21-21

PRESIDENT BIDEN’S COVID-19 ACTION PLAN AND PUBLIC SCHOOLS

On September 9, 2021 President Joe Biden announced a range of federal initiatives to combat the COVID-19 pandemic and to ameliorate its consequences. While we await the issuance of Executive Orders and/or federal regulations setting forth the exact parameters of these new rules, public schools will likely require guidance regarding many of the as-yet unclear aspects of these new requirements, and will need answers to the following questions regarding them:

1. Requirement that all employers with 100 or more employees ensure that their workers are vaccinated or tested weekly.

When will the federal Occupational Safety and Health Administration (OSHA) issue rules setting forth this requirement?

The White House website says this will affect “80 million workers and private sector businesses”. Will it also affect public school districts?

Who pays for the weekly testing?

When will such rules go into effect?

How will this requirement be enforced?

2. Requirement that employers with 100 or more employees provide paid time off for employees to get vaccinated and recover from vaccinations.

When will OSHA issue such rules and when will they take effect?

Will such rules be applied retroactively so as to require employers to reimburse employees who lost such pay earlier during the pandemic?

What are the TRS and IMRF implications, if any, of any such federal mandates?

3. Requirement that staff in Head Start programs be vaccinated.

When will the federal Department of Health and Human Services (HHS) issue rules placing this requirement into effect?

Will HHS announce a grace period for school personnel to come into compliance?

Will HHS allow these school personnel the alternative of weekly COVID-19 testing?

What consequences will school personnel or school districts face in the event of noncompliance?

We will continue to monitor the federal government’s implementation of the President’s new initiatives. Those with questions regarding the impact of these new requirements upon their School District are encouraged to call the Attorneys at Zukowski Law Offices.

Posted 9-11-21

GOVERNOR DELAYS VACCINE/TESTING MANDATES AND MAKES OTHER CHANGES TO PRIOR EXECUTIVE ORDER

On September 3, 2021 Governor J.B. Pritzker issued a new Executive Order (E.O. 22) which replaces his Executive Order 20 issued eight (8) days earlier. As widely reported, E.O. 22 extends the implementation dates of the vaccine and testing mandates to September 19, 2021. However, the new E.O. 22 includes other noteworthy changes to the terms of his prior Order.

First, E.O. 22 includes a new Subsection 6(a) which directs parties to various available testing resources recognized by the State as valid.

Second, new Subsections 6(b) and 6(c) provide that “Nothing in this Executive Order prohibits any [public] entity,…” from requiring that personnel, contractors, students and visitors “… be fully vaccinated by a date sooner than required by this Executive Order” (6(a)); or “… be fully vaccinated without providing the alternative to test on a weekly basis, consistent with applicable law” (6(c)).

Notably E.O. 22 does not cite to any legal authority for a public body to take such actions. It merely states that the Order is not itself prohibiting such actions. Thus, if a School wishes to take any such action it may wish to first confer with its legal counsel as to whether or not there is any existing legal basis for such action. In addition, the District may need to negotiate with representatives of employees subject to a Collective Bargaining Agreement prior to implementing any such action.

Finally, within new Subsection 6(f) E.O. 22 makes it clear that school districts may “…permit…, School Personnel,… to be present on premises while they are awaiting the results of a weekly COVID-19 test required by this Executive Order as long as they do not have any symptoms of COVID-19 that warrant exclusion until the test result is received”.

Many questions remain about the implementation of E.O. 22. We look forward to the issuance of guidance from the IDPH and the ISBE regarding answers to such questions.

Those with questions regarding the impact of this Executive Order upon their School District are encouraged to call the attorneys at Zukowski Law Offices.

Posted 9-8-21

EXECUTIVE ORDER ADDRESSES VACCINATION/COVID TESTING OF PUBLIC SCHOOL EMPLOYEES

On August 26, 2021 Governor J.B. Pritzker issued an Executive Order (E.O. 20) which imposes a vaccination mandate for all “School Personnel”, defined to include “… any person who (1) is employed by, volunteers for, or is contracted to provide services for a School or school district serving students in pre-kindergarten through 12th grade, or who is employed by an entity that is contracted to provide services to a School, and (2) is in close contact (fewer than 6 feet) with other persons in the School for more than 15 minutes at least once a week on a regular basis as determined by the School”. All such persons must have their first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 5, 2021 unless they meet the requirements for either the medical exemption or the religious exemption set forth in the Order.

All School Personnel receiving a two-dose vaccine must be fully vaccinated, as defined by the CDC, “… within 30 days following administration of their first dose…”. This requirement, which is more stringent than the CDC’s current allowance that a second dose may be administered within 42 days after the first dose[1], may require careful administrative oversight.

School Personnel must prove that they are fully vaccinated. They may do so by providing the school with “…one of the following: (1) a CDC COVID-19 vaccination record card or a photograph of the card; (2) documentation of vaccination from a healthcare provider or electronic health record; or (3) state immunization records.”

With regard to COVID-19 testing E.O. 20 provides that, starting on September 5, 2021, in order “…to enter or work at or for a School, School Personnel who have not been fully vaccinated against COVID-19 must undergo testing for COVID-19, …, until they establish that they are fully vaccinated against COVID-19.” This requirement is more stringent than what the Governor said at his press conference yesterday, wherein he said a “first dose”  by that date would suffice.

Such testing “… must be done using a test that either has Emergency Use Authorization by the FDA or be operating per the Laboratory Developed Test requirements by the US Centers for Medicare and Medicare Services… [and] must be conducted on-site at the School or the School must obtain proof or confirmation from the School Personnel of a negative test result obtained elsewhere.”

Many questions remain regarding the implementation of E.O. 20, including but not limited to: (1) how and by whom (exactly) is such COVID-19 testing to be implemented; (2) who will pay for such testing; (3) what must be collectively bargained; (4) by what date must such matters be bargained; and (5) the manner in which districts may need to adjust their policies and handbooks. We look forward to the issuance of guidance from the IDPH and the ISBE on such matters.

Those with questions regarding the impact of this Executive Order upon their school district are encouraged to call the attorneys at Zukowski Law Offices.

 

[1] COVID-19 Vaccines that Require 2 Shots | CDC

Posted 8-27-21