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Employment & Labor Law FLASHPOINTS November 2021

Catherine R. Locallo, Robbins Schwartz, Chicago
312-332-7760 | E-mail Catherine R. Locallo

Trending Now: COVID-19 Vaccine Mandates

This article will provide an overview of Governor Pritzker’s COVID-19 vaccine mandate for certain sectors, the COVID-19 vaccine mandate for City of Chicago employees, and President Biden’s plan to mandate the COVID-19 vaccine for federal and private sector employees. It will also examine some of the responses to date to vaccine mandate challenges.

Illinois Vaccine Mandate for Healthcare Workers, School Personnel, Higher Education Personnel, Students, and Daycare Workers

In response to increased COVID-19 cases and hospitalizations, Governor Pritzker upped the ante on vaccination as part of the state’s efforts to prevent the spread of COVID-19 in Illinois through the issuance of Executive Order No. 2021-24, 12,222 (Sept. 17, 2021), as amended by Executive Order No. 2021-25, 12,929 (Sept. 21, 2021). Specifically, to lower the number of breakthrough cases that require hospital admission, the majority of whom are 65 and over or immunocompromised, the following individuals must be fully vaccinated:

  1. all healthcare workers, including workers at public and private nursing homes;

  2. all teachers and staff at Pre-K-through Grade 12 schools; and

  3. all personnel and students (attending classes in-person) at higher education institutions.

Employees and students in the above settings were required to receive the first dose of a two-dose vaccination series or a single-dose vaccination by September 19, 2021. Second doses of the vaccine must be received 30 days after the first dose.

Employees and students who are unable or unwilling to get vaccinated must follow a routine testing schedule to detect cases early and prevent further spread. Testing is required a minimum of once per week in the above settings, with the minimum being subject to increase by the Illinois Department of Public Health or other officials. Note that nothing in the executive order prohibits a covered entity from requiring vaccination without a testing alternative, unless approved for a medical or religious accommodation.

On October 22, 2021, the vaccine mandate was extended to daycare workers through Executive Order No. 2021-28 (Oct. 22, 2021), with a compliance deadline of December 3, 2021, and January 3, 2022, respectively.

City of Chicago Vaccine Mandate for Employees

The City of Chicago adopted a policy that all employees must, as a condition of employment, be fully vaccinated against COVID-19 effective October 15, 2021. “Employees” include city employees, personnel of contractors, and vendors who have regular direct contact with, or regularly work close to, city employees and volunteers.

For those that are not fully vaccinated by October 15, 2021, the policy provides a grace period through December 31, 2021, during which unvaccinated employees can remain employed as long as they undergo COVID-19 testing on a twice-weekly basis. After December 31, 2021, all employees must be fully vaccinated unless they have an approved exemption.

President Biden’s Plan To Mandate Vaccines for Federal and Private Sector Employees

On September 9, 2021, through executive order, President Biden announced the “Path out of the Pandemic” initiative for almost all federal employees and contractors and millions of healthcare workers. The plan directs the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) requiring businesses with more than 100 employees to mandate vaccinations among their workers or provide a negative test result on a weekly basis. The ETS should also provide paid time off to employees to become vaccinated. As of November 1, 2021, the ETS has not yet been officially filed in the Office of the Federal Register. Thus, the federal vaccine mandate for covered entities and businesses is not yet effective and questions remain unanswered. These questions include timing to issue the ETS, timing to comply with the ETS once issued, who/how will coverage be determined, and application of the ETS to those with valid medical or religious objections.

Nearly all executive branch employees and most federal contractor employees are subject to the vaccine mandate, which is in turn subject to guidance issued by the Safer Federal Workforce Task Force.

For healthcare workers receiving federal funding, the Centers for Medicare and Medicaid (CMS) is expected to issue emergency regulations expanding the existing vaccine mandate for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, home health agencies, and others as a condition for receiving Medicare and Medicaid funds.

Overview of Certain Responses to COVID-19 Vaccine Mandate

Objections to COVID-19 vaccine mandates take many shapes, including medical, religious, and philosophical objections. As contemplated by the vaccine mandates discussed above, a reasonable alternative to vaccination is routine surveillance testing for COVID-19 on no less than a weekly basis.

EEOC Issues Updated Guidance on Religious Objections to Vaccine Mandate

On October 29, 2021, the Equal Employment Opportunity Commission (EEOC) issued updated guidance addressing Title VII of the Civil Rights Act of 1964 (Title VII), Pub.L. No. 88-352, Title VII, 78 Stat. 253, and religious objections to COVID-19 vaccine mandates (refer to part L of the guidance). Key takeaways from the updated guidance include the following:

1. Employees must tell their employer if they are requesting an exception to a COVID-19 vaccination requirement because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances.

2. The employer may ask for an explanation of how the employee’s religious belief conflicts with the employer’s COVID-19 vaccination requirement. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

3. Under Title VII, an employer should thoroughly consider all possible reasonable accommodations, including telework and reassignment.

4. If there is more than one reasonable accommodation that would resolve the conflict between the vaccination requirement and the sincerely held religious belief without causing an undue hardship under Title VII, the employer may choose which accommodation to offer.

5. If an employer demonstrates that it is unable to reasonably accommodate an employee’s religious belief without an “undue hardship” on its operations, then Title VII does not require the employer to provide the accommodation. 42 U.S.C. §2000e(j). Courts have found Title VII undue hardship where, for example, the religious accommodation would impair workplace safety, diminish efficiency in other jobs, or cause coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.

6. An employer has the right to discontinue a previously granted accommodation if it is no longer utilized for religious purposes, or if a provided accommodation subsequently poses an undue hardship on the employer’s operations due to changed circumstances.

7. When an employee’s objection to a COVID-19 vaccination requirement is not religious in nature, or is not sincerely held, Title VII does not require the employer to provide an exception to the vaccination requirement as a religious accommodation.

Amendment to Health Care Right of Conscience Act

On October 28, 2021, an amendment to the Health Care Right of Conscience Act (HCRCA), 745 ILCS 70/1, et seq., was passed by both Houses through Amendment 3 to S.B. 1169. Essentially, the declaratory amendment provides that it is not (and has not been) a violation of the HCRCA to take or enforce any measures (i.e., mandatory vaccination or testing) to prevent contraction or transmission of COVID-19.

Survey of Some Recent Court Cases

On October 29, 2021, U.S. District Court Judge John Lee denied a motion by 130 Chicago firefighters and other city employees to temporarily halt enforcement of the City of Chicago’s requirement that all its workers report whether or not they’ve received the COVID-19 vaccination or risk being put on no-pay status.

That same day, the U.S. Supreme Court declined to block a vaccine mandate for healthcare workers in Maine. Does 1 – 3 v. Mills, No. 21A90, 2021 WL 5027177 (Oct. 29, 2021). The workers opposed the mandate because it did not include an exemption based on religious grounds (only medical grounds).

On the same date, a New York State federal appeals court vacated a temporary injunction that allowed for a religious exemption to the state’s COVID-19 vaccine mandate for healthcare workers. The U.S. Court of Appeals for the Second Circuit said a written decision would be forthcoming.

On October 26, 2021, the U.S. District Court for the Northern District of Texas dismissed a request for an injunction against an impending vaccine mandate brought by a union that represents pilots at Southwest Airlines. Southwest Airlines Pilots Ass’n v. Southwest Airlines Co., No. 3:21-cv-02065-M, 2021 WL 4975010 (N.D.Tex. Oct. 26, 2021). The vaccine mandate takes effect December 8, 2021, except for religious, medical, or disability accommodations.

On October 7, 2021, the U.S. Court of Appeals for the Sixth Circuit declined to issue a stay pending appeal of the lower court’s grant of a preliminary injunction enjoining Western Michigan University from enforcing its COVID-19 vaccine mandate against 16 student-athletes. Dahl v. Board of Trustees of Western Michigan University, No. 21-2945, 2021 WL 4618519 (6th Cir. Oct. 7, 2021).

On July 18, 2021, the United States District Court for the Seventh Circuit ruled that Indiana University can proceed with its plan to require students and employees to get vaccinated for COVID-19 or be forced to wear masks and be tested for COVID-19 twice per week. Klassen v. Trustees of Indiana University, No. 1:21-CV-238 DRL, 2021 WL 3073926 (N.D.Ind. July 18, 2021). Specifically, the appellate court upheld an Indiana district court judge’s ruling that found that the university was acting reasonably “in pursuing public health and safety for its campus communities.” 2021 WL 3073926 at *37.

In coming months, the legal landscape regarding mandatory vaccination should continue to take shape.

For more information about employment and labor law, see CAUSES OF ACTION: EMPLOYMENT ACTIONS (IICLE®, 2021). Online Library subscribers can view it for free by clicking here. If you don’t currently subscribe to the Online Library, visit www.iicle.com/subscriptions.

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