November 08, 2021

Delayed Gratification: Starting June 2022, Illinois Health Care Right of Conscience Act Does Not Apply to COVID-19 Measures or Requirements

On October 27, 2021 the Illinois legislature passed an amendment to the Illinois Health Care Right of Conscience Act (the Act).  Gov. J.B. Pritzker is expected to sign the amendment, which would allow employers to more easily enforce work rules and policies related to COVID-19.

Background

The Act was first enacted in 1977 to, in part, protect the right of conscience of all health care providers who refuse to participate in patient care that is contrary to their conscience and shielding such providers from civil and criminal liability for not performing such health care services. The other purpose of the Act was to prohibit employers from discriminating against such employees or applicants who refuse to participate in such patient care.

Needing the Carve-Out

In response to a drastic spike in COVID-19 infections caused by the Delta variant, Gov. Pritzker issued an Executive Order on August 26, 2021, later amended on September 5, 2021, (the Executive Order) mandating COVID-19 vaccinations for health care workers, school personnel, higher education and state-owned or operated congregate facilities. The Executive Order did not address whether individuals could implicate the Act to challenge compliance with employers’ vaccination requirements. Employees across the state made exactly that argument to their employers in effort to defy vaccination requirements.

The amendment to the Act addresses these issues by clarifying that employers can impose COVID-19 vaccination requirements as a condition of employment and terminate those who refuse to comply, regardless of “conscience” objections. The amendment (1) creates a COVID-19 carve-out that makes it clear that employers can impose measures or requirements intended to prevent the contraction or transmission of COVID-19, such as routine testing, vaccination and treatment for COVID-19, without violating the Act and (2) shields employers from liability in the event individuals seek to challenge employers for enforcing such measures or requirements.

Application of the Act

The amendment to the Act did not receive a three-fifths majority vote in either the Illinois House or the Illinois Senate as required by the Illinois Constitution for bills passed after May 31 to be effective prior to June 1 of the following year.

The amendment states that it “is a declaration of existing law” and therefore should not be construed as a new enactment, but should apply immediately. If the amendment is found to not be a declaration of existing law, it becomes effective June 1, 2022.

However, on November 4, 2021 OSHA’s workplace vaccination rule, which applies to employers with 100 or more employees, was released and CMS published an interim final rule for health care facilities that participate in Medicare and Medicaid programs to require vaccination for all health care workers. Both agencies have been clear that their new rules preempt any existing state or local laws that limit employer rules regarding vaccination, masks or testing. Therefore, for employers covered by the OSHA and CMS rules, the effective date of the amendment is likely irrelevant because the Act is preempted by those rules. For more on those rules, visit Faegre Drinker’s COVID-19 resource center.

Employer Takeaways

The amendment to the Act explicitly allows employers to impose and enforce COVID-19 health and safety policies, including vaccination and testing requirements. However, employers should take care to consider whether the Act applies to requests prior to June 1, 2022.

Continue to consider religious and medical exemption requests to any such policies in accordance with federal and state discrimination laws.

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