The authority of a public employer to require vaccination, or regular testing for COVID, has been considered by an Illinois Appellate Court. The Court agreed with the decision of the Sangamon County Circuit Court to deny an emergency order sought by several public employees to prevent enforcement of their employers’ requirement to either be vaccinated for COVID or to regularly be tested, or to be subject to discipline. A more detailed summary of the reasoning of the Appellate Court is set forth hereinbelow.
The full decision of the Appellate Court in Graham v Pekin Fire Department, et. al., 2022 IL App (4th) 220270 is available here.
Summary of Decision
Graham v Pekin Fire Department, et. al., 2022 IL App (4th) 220270
A number of employees with varying public employers filed suit challenging their employers’ policy to either be vaccinated or, if vaccination was unacceptable due to moral or medical reasons, submit to regular testing for COVID. These public employees contended that both of these options, vaccination or testing, offended their conscience and that they had the right not to be subjected to an employment requirement of being vaccinated or tested for COVID-19. They also argued that this decision by their employer violated the Illinois Public Health Act. The consequence for noncompliance with this policy was unpaid suspension or discharge. The employer policy was based upon an Executive Order issued by the Governor.
The employees challenging the policy claimed that the vaccination or testing policy was not authorized by law, contending that only the Illinois Department of Public Health has the statutory authority to quarantine people and to require them to be vaccinated against, or to be tested for, contagious diseases. The employees also contend that the vaccination or testing policy was a violation of an act of discrimination the Illinois Right of Conscience Act (745 ILCS 70/5).
[The decision here was not a final decision on the merits of the issues, but rather the appellate court agreed with the decision of the Circuit Court that the plaintiffs did not show that they were likely to succeed on the merits of their claims, in order to be entitled to the emergency relief they sought for an immediate temporary restraining order.]
The employees filed 2 claims: that their rights under the Illinois Right of Conscience Act had been violated and that the requirements for the Department of Public Health to issue a “quarantine” order had not followed as the basis for such an employment policy requiring vaccination or testing.
The Right of Conscience Act
As to the first claim, the employees contended that by conditioning their continued employment on vaccination or testing, their employers unlawfully “discriminated against” them by violating their conscientious right to refuse “to receive” or “participate in” a “form of health care services.” 745 ILCS 70/5 (West 2020).
The Circuit Court found no violation, relying in part on a recent amendment passed by the General Assembly clarifying that it was not a violation of the Conscience Act for any employer to take measures calculated to prevent the spread of COVID-19. The Circuit Court found that the public employers involved here had not “discriminated” against any employees under terms of the Right in Conscience Act.
The Department of Public Health Act
The employees also claim their employer policy to be vaccinated or test is a violation of section 2 of the Department of Public Health Act (“Health Act”) (20 ILCS 2305/2). The appellate court noted that the employees had failed to adequately explain how such a policy violates this statute, noting that even though the Health Department “has supreme authority in matters of quarantine and isolation” under the Health Act, the public employers involved had not quarantined or isolated any employees, nor threatened to do so. The consequence under the employer policy for noncompliance with the vaccination or testing requirement was the loss of employment, not quarantine or isolation. The Court noted that just because the Illinois Department of Public Health is authorized to compel vaccination or isolation or quarantine, it did not impact employer authority over workplace safety, such as the authority to require employees to be vaccinated or test for infectious diseases such as COVID-19 or to be terminated. The Appellate Court did clearly note that public employers have the power to establish workplace safety rules, of which the vaccination or testing requirement would be an example, as such power is reasonably necessary to exercise the authority expressly granted to them. The Court also noted this challenge to a “vaccination or testing requirement” is not a decision on public health since public health relates to the health or sanitary condition of the community at large. The vaccination or testing employment policy here being challenged is not designed to maintain “the health of the community at large.” The policy is a workplace safety rule and a workplace rule of considerate conduct toward the public that the agencies serve.
Decision of Appellate Court
Based on the above reasoning, the appellate court affirmed the circuit court’s decision that the employees failed to establish a likelihood of success on the merits on their claims under the Conscience Act and the Health Act.