9-28-2021; Federal Vaccine Mandate appears on a Collision Course with State Statute by John Campbell; Changes Coming at IL WC Commission and more

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Synopsis: Federal Vaccine Mandate appears on a Collision Course with State Statute; U.S. Employers stuck squarely in the middle! Research and Comment by John P. Campbell, J.D.

 

Editor’s Comment: On Sept. 9, 2021 President Biden signed the “Path out of the Pandemic” pursuant to Executive Order.  This plan included a series of directives compelling Covid vaccination of employees, some of which appear, at least at first glance, to be in direct contradiction to Illinois State law as well as similar state statutes around the nation.

 

This Federal directive will be enforced by the Department of Labor’s Occupational Health and Safety Administration (“OSHA”). OSHA shall develop an Emergency Temporary Standard (“ETS”) requiring employers with 100 or more employees to mandate that their employees be vaccinated against COVID-19 or be subject to weekly testing. Employers are also required to grant employees paid time off to get vaccinated and recover from side effects associated with the vaccine. The effective date remains unclear, but we know OSHA is charged with enforcing any ETS and OSHA is empowered to dispatch fines of up to $14,000 per violation!

 

Hey, can they do that??

Well, according to Federal law, yes. Since May 28, 2021, the EEOC has repeatedly declared that Federal employment laws do not prevent an employer from requiring all employees who enter the workplace to be vaccinated for COVID-19. That said, employers must still comply with the reasonable accommodation provisions of the ADA and Title VII of the Civil Rights Act of 1964. As an example, an employee may have a medical condition which places them at high risk for an adverse reaction to the vaccine. As a result, the employee may be under medical direction to forego the shot. In such instance, proof of this medical prohibition from the vaccine would warrant “reasonable accommodation”, perhaps in the form of weekly testing for Covid-19.

Inapposite to this directive, Illinois has a long-standing statute which appears to directly conflict with the Presidential Mandate to compel employee vaccination.

The Illinois Health Care Right of Conscience Act. (745 ILCS 70/2) declares in relevant part:

It is the public policy of the State of Illinois to respect and protect the right of conscience of all persons who refuse to obtain, receive or accept…medical care whether acting individually, corporately, or in association with other persons; and to prohibit all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in …refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care.
(Source: P.A. 99-690, eff. 1-1-17.)

Sec. 7. Discrimination by employers or institutions. It shall be unlawful for any public or private employer, entity, agency, institution, official or person, including but not limited to, a medical, nursing or other medical training institution, to deny admission because of, to place any reference in its application form concerning, to orally question about, to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant, in terms of employment, admission to or participation in any programs for which the applicant is eligible, or to discriminate in relation thereto, in any other manner, on account of the applicant's refusal to receive, obtain, accept, perform, counsel, suggest, recommend, refer, assist or participate in any way in any forms of health care services contrary to his or her conscience.
(Source: P.A. 90-246, eff. 1-1-98.)

 

First, we must point out that the statute defines “conscience” as a sincerely held religious belief. Proving (or dis-proving) an individual’s stated religious belief is somewhat like judging art… far more subjective than objective, making employer assessments on this issue extremely challenging. Those with strict religious beliefs, may for example, assert an objection that aborted fetal tissue was used in the testing of the vaccine (not contained in the vaccine as erroneously alleged initially). How is an employer supposed to measure the sincerity of such an assertion of an employee, especially considering the statutory language above?

We note at first glance, the broad Presidential Mandate compelling vaccination appears in contradiction to this State Statute. However, the Presidential Mandate will be subject to exemptions for individuals who cannot receive a COVID-19 vaccine due to a disability or “sincerely held religious belief.” Therefore, the Presidential Mandate offers a narrow exception that seems to fit squarely with the intended purpose of the Illinois Statute to protect sincere religious beliefs against vaccination. While this resolves the potential conflict of laws, it does nothing to help guide employers struggling with implementation and compliance.

Also, note that the President’s Mandate offers an alternative option for those who do not want to get the jab. Weekly Covid-19 testing is an accepted (albeit discouraged) alternative to vaccination. This would prove burdensome for many, but for those who do not have a religious objection but rather, simply hold concern for the long-term efficacy and safety of a new vaccine, there is an option to be tested regularly.

Nevertheless, open questions remain:

  • Who will pay for weekly testing?

  • Will the store-bought tests suffice?

  • How will vaccination records be stored?

  • What about boosters and requiring perpetual medical updates from employees?

  • If a medical disability is declared and/or medical basis for refusing the vaccine, does the ADA interactive process have to take place in each case?

 

The ink is not dry on this Presidential Mandate, so there are no firm answers yet. Our best advice to employers with 100 or more workers is to make every effort to walk the tight-rope strung before you. Explain to employees that there is a Presidential Mandate for vaccination, enforced by OSHA which you are compelled to ask employees to comply. If they do not comply, explain your obligation at the direction of the Federal Government, and their addition obligation as an employee to outline a valid, sincere conscientious objection to the vaccine or in the alternative, provide weekly proof of updated negative Covid-19 testing.

 

This article was researched and written by John P. Campbell, Jr., Managing Partner at Keefe, Campbell, Biery & Associates, LLC. You can reach John to discuss or for comments at jcampbell@keefe-law.com.

 

Synopsis: Changes Coming at IL WC Commission

Editor’s comment: You almost need a scorecard to keep track of all the incoming and outgoing IL WC hearing officers. Please note they all quietly got significant raises this year with guaranteed annual bumps to now be linked to a percentage of the compensation of Illinois’ very well-paid judiciary. If you look online, I don’t believe there are any WC hearing officers in any other state of the U.S. that get paid anything close to our IL WC team.

Judicial Appointment/New Commissioner

 

Former IL WC Arbitrator Carolyn Doherty has been appointed by Governor JB Pritzker to fill the unexpired term appointment of former Commissioner Barbara Flores.  Flores was appointed as an Associate Judge of the Circuit Court of Cook County effective October 3, 2021.  

 

Ms. Doherty will assume this new position, of Commissioner, effective October 4, 2021.  Commissioner Doherty will serve as the Public Member on Panel C.

Arbitration Assignments

Roma Parikh Dalal will take over the Zone 4 Call previously assigned to former Arbitrator (now Commissioner) Carolyn Doherty, effective October 4, 2021.

Please take notice that effective November 1, 2021, the following Arbitrators will take over the following Monthly Status Calls:

  • Kurt Carlson will take over the Zone 3 Call previously assigned to former Arbitrator Melinda Rowe-Sullivan.

  • Nina Mariano will take over the Cook County Call previously assigned to Arbitrator Kurt Carlson.

  • Ana Vasquez will take over the Cook County Call previously assigned to former Arbitrator (now Commissioner) Christopher Harris. (TBA 1).

  • Antara Nath Rivera will take over the Cook County Call previously assigned to former Arbitrator Douglas Steffenson.

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