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

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