Emphasizing the need to better protect the most vulnerable populations, including young children who do not yet eligible for vaccines and noting that 98% of Illinois’ COVID-19 infections from January to July were among the unvaccinated, the Governor has issued a series of new Orders. The Orders are designed to address the surge in COVID-19 hospitalizations due to the delta variant among the unvaccinated.
|2021-18||August 4, 2021||A universal mask mandate for students, staff, and visitors who are over age two and able to medically tolerate a face covering, regardless of vaccination status and implement other layered prevention strategies to the greatest extent possible.|
|2021-20||August 26, 2021||A vaccine mandate for state and private workers in congregate settings, such as nursing homes, prisons and veterans’ homes. First doses of the vaccine are due by September 5th.|
|2021-20||August 26, 2021||All individuals in Illinois who are age two or over and able to medically tolerate a face covering (a mask or cloth face covering) shall be required to cover their nose and mouth with a face covering when in an indoor public place, regardless of vaccination status. The covering may be removed by workers at workplaces when they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space). Effective Monday, August 30, 2021.|
|2021-20||August 26, 2021||A vaccine mandate for all school staff from pre-kindergarten through college, college students and healthcare workers. Employees in the healthcare and educational settings and higher education students who are unable or unwilling to receive the vaccine will be required to get tested for COVID-19 at least once per week. First doses of the vaccine are due by September 5th.|
Based on existing legal precedent, the Governor’s vaccination order for educators, health care workers and higher education students is lawful and enforceable. We would also note that the right to “conscientiously refuse” certain health care measures under the Illinois Health Care Right of Conscience Act is limited and does not apply to these vaccination and testing requirements. Further, there may be an obligation to bargain the “impact” of these vaccination or testing requirements, but not the requirement itself. For example, to the extent the cost (if there is one) of the testing is imposed on the educator or healthcare worker, there may be a duty to bargain the cost impacts of the testing. Finally, high school students enrolled for credit in post-secondary courses (vocational, college, community college) may be subject to vaccination requirements under the plain definition of “Higher Education Students” as defined in Executive Order 2021-20 (see below) but we are awaiting further guidance from ISBE on this issue.
The following are links to the full text of these Executive Orders:
A more detailed summary of the indoor face covering, vaccination, and testing requirements for educators and healthcare workers pursuant to Executive Order 2021-20 is set forth below.
Public and Union Support
As for certain public and union support at this point, both the Illinois Education Association and the Illinois Federation of Teachers have expressed support for the vaccine mandate. As for the Governor’s vaccine mandate for State workers in congregate facilities, the largest public employee union in Illinois, the American Federation of State, County and Municipal Employees Council 31, supports vaccination but has demanded bargaining over the same vaccination or testing option being offered to educators. The Illinois Retail Merchants Association and the Illinois Manufacturers Association have publicly supported the Governor’s indoor masking requirement as “a measured approach” to ensure continued shopping access to goods, food and medicine without further interruption.
Indoor Face Covering Requirements
Effective Monday, August 30, 2021, all individuals in Illinois who are age two or over and able to medically tolerate a face covering (a mask or cloth face covering) shall be required to cover their nose and mouth with a face covering when in an indoor public place.
- Face coverings may be removed temporarily while actively eating or drinking (including in bars or restaurants), and may be removed by workers at workplaces when they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space).
- All individuals, including those who are fully vaccinated, shall continue to be required to wear a face covering:
- On planes, buses, trains, and other forms of public transportation and in transportation hubs such as airports and train and bus stations;
- In congregate facilities such as correctional facilities and homeless shelters; and
- In healthcare settings.
Vaccine Mandate Requirements and Procedures
for Educators and Healthcare Workers
The Governor has ordered vaccination for all school staff from pre-kindergarten through college, higher education students and healthcare workers. Employees in the healthcare or educational settings and higher education students who are unable or unwilling to receive the vaccine will be required to get tested for COVID-19 at least once per week. A person is fully vaccinated 2 weeks after receiving their second dose in a two-dose series of an approved COVID-19 vaccine or two weeks after receiving a authorized single-dose COVID-19 vaccine.
Timing of Vaccination
All covered school and healthcare personnel and higher education students (see below) must have the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 5, 2021, and be fully vaccinated within 30 days following administration of their first dose in a two-dose vaccination series.
Compliance With Vaccination Requirement
To establish full vaccination, school and healthcare personnel and higher education students must provide proof of full vaccination to the School or Health Care Facility or Institution of Higher Education. Proof of COVID-19 vaccination may be met by providing one of the following:
- CDC COVID-19 vaccination record card or photograph of the card;
- Documentation of vaccination from a health care provider or electronic health record; or
- State immunization records
Lack of Vaccination
Schools, Health Care Facilities and Institutions of Higher Education shall exclude covered personnel and Higher Education students who are not fully vaccinated from the premises unless they comply with required testing requirements (see below).
Beginning September 5, 2021, to be present, enter or work at or for a School or Health Care Facility on Institution of Higher Education covered persons who have not been fully vaccinated must undergo COVID required testing until they establish that they are fully vaccinated.
Exemption(s) From Vaccination
Persons, otherwise required to be vaccinated under Executive Order 2021-20, are exempt from vaccination if:
- Vaccination is medically contraindicated, including any individual who is entitled to an accommodation under the Americans with Disabilities Act or any other law applicable to a disability-related reasonable accommodation, or
- Vaccination would require the individual to violate or forgo a sincerely held religious belief, practice, or observance.
Individuals who demonstrate they are exempt from the vaccination requirement shall undergo required weekly testing.
Testing Requirements for Unvaccinated
Any covered personnel or Higher Education Students who do not establish they are timely and properly vaccinated must be tested at least weekly.
- The 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 U.S. Centers for Medicare and Medicaid Services.
- Such testing for School Personnel who are not fully vaccinated against COVID-19 must be conducted on-site at the School, Healthcare Facility or Institution of Higher Education or must obtain proof or confirmation from the School Personnel, Health Care Worker or Higher Education Student of a negative test result obtained elsewhere.
- IDPH recommends that School Personnel, Healthcare Workers and Higher Education students be tested using a PCR test if available.
Covered School Personnel
“School Personnel” is defined as an employee or volunteer providing services to or for a school with students pre-kindergarten through 12th grade, who is in close contact (less than 6 feet) with others in the facility for over 15 minutes regularly or at least once a week (as determined by the School). This does not include anyone present for only a short period of time when close physical proximity to others is fleeting (e.g., contractors making deliveries to a site where they remain physically distanced from others or briefly entering a site to pick up a shipment).
- “School” includes public/ nonpublic and charter elementary/secondary school, for pre-kindergarten through 12th grade students.
Covered Health Care Workers
“Health Care Worker” is defined as an employee or volunteer providing services to or for a Health Care Facility who is in close contact (less than 6 feet) with others in the facility for over 15 minutes regularly or at least once a week (as determined by the Health Care Facility). This does not include anyone present for only a short period of time when close physical proximity to others is fleeting ( e.g., contractors making deliveries to a site where they remain physically distanced from others or briefly entering a site to pick up a shipment) or any employee or volunteer of any State facility.
- “Health Care Facility” means any entity or building, or portion, public or private, that is used or designed to provide health services, medical treatment or nursing, or rehabilitative or preventive care to anyone. Examples include, but are not limited to:
- Ambulatory surgical treatment centers, dental offices, hospices, hospitals, physician offices, emergency centers, urgent care facilities, birth centers, post-surgical recovery care facilities, end-stage renal disease facilities, long-term care facilities (including skilled and intermediate long-term care facilities licensed under the Nursing Home Care Act, the ID/DD Community Care Act or the MC/DD Act),
Assisted living facilities, supportive living facilities, medical assistance facilities, mental health centers or facilities, outpatient facilities, public health centers, rehabilitation facilities, residential treatment facilities, and adult day care centers. The term does not include any State-owned or operated facilities.
Covered High School Students as “Higher Education Students”
“Higher Education Student” means an individual enrolled in credit bearing or non-credit bearing coursework at an Institution of Higher Education, either on campus or at an affiliated off-campus location. The term “Higher Education Student” does not include individuals who complete their coursework exclusively remotely.
- “Institution of Higher Education” means any publicly or privately operated university, college, community college, junior college, business, technical or vocational school, or other educational institution offering degrees, programs, or instruction beyond the secondary school level.