Seyfarth Synopsis: On October 28, 2021, an amendment to the Illinois Health Care Right of Conscience Act passed the Illinois General Assembly and made its way to Governor Pritzker’s desk. The amendment creates a COVID-19 carve-out, but it will not go into effect until June 1, 2022. The amendment shields employers from liability for enforcing COVID-19 health requirements, including vaccines and tests. Employers may terminate employees who refuse to provide COVID-19 health care treatment.
Under the 1977 Illinois Health Care Right of Conscience Act (the “Act”), health care providers are shielded from civil and criminal liability for refusing to participate in health care which is “contrary” to their conscience. Health care employers are further prohibited from discriminating against their employees and applicants who refuse to accept “any forms of health care services contrary to [their] conscience.”
During the COVID-19 pandemic, a minority of health care workers have refused to accept or provide COVID-19 vaccination and treatments, citing a range of religious, moral, political, and conscience objections. Under Title VII, employees can seek accommodations from compliance with employment terms that violate their sincerely held religious beliefs, but an employer need not accommodate a religious belief where it imposes more than a de minimis cost.
On October 28, 2021, the amendment passed the General Assembly and went to Governor Pritzker to sign into law. The amendment, which will become effective on June 1, 2022, creates a COVID-19 carve-out, making clear that employers can impose COVID-19 vaccination requirements and COVID-19 treatment as a condition of employment and terminate those who refuse to comply, regardless of “conscience” objections. Under federal law, employees still must evaluate reasonable accommodations for a disability and bona fide religious beliefs. The amendment should undermine discrimination claims based on the Act, though plaintiffs could still go forward with claims under Title VII and the Illinois Human Rights Act.
The amendment did not receive 60% of the vote in either house as required by the Illinois Constitution and thus, will go into effect on June 1, 2022 once signed by the Governor. The amendment will apply to “all actions commenced or pending on or after the effective date.”
In late August 2021, Governor Pritzker issued an Executive Order (COVID-19 Executive Order No. 87), later amended on September 5, 2021, mandating COVID-19 vaccinations for health care workers, school personnel, higher education, and state-owned or operated congregate facilities. The Executive Order was issued in response to the significant concerns raised by the Delta variant and its impact on those seeking healthcare and treating patients in Illinois. It embodies the public policy of this state to maximize vaccination in healthcare. The Order specifically states that nothing contained therein prohibits any entity from implementing vaccination or testing requirements that exceed the requirements of the Order.
At the federal level, President Biden announced in September that private employers with 100 or more employees would be required to vaccinate or test their workers pursuant to an Emergency Temporary Standard ETS) to be issued by the Occupational Safety and Health Administration. The ETS is expected any day. At the same time, the President announced that employees of federal government contractors would be required to be vaccinated, without a testing option.