On November 8, 2021, Governor J.B. Pritzker signed into law an amendment to the Illinois Health Care Right of Conscience Act (the Act) that will prevent employees from relying on the Act to avoid employer COVID-19 vaccine or testing mandates. The amendment goes into effect on June 1, 2022.

Overview of the Illinois Health Care Right of Conscience Act

The Act was first passed in 1977 and was meant to protect from discrimination health care workers who participated in, or refused to participate in, the delivery or receipt of health care services that were “contrary to their conscience.”

Recently, however, some non-health care workers in Illinois have relied on the Act to claim an exemption from their employers’ COVID-19 vaccination or testing requirements based on the Act’s broad language prohibiting discrimination “against any person in any manner” who refuses to “obtain, receive or accept” health care services or medical care. In fact, several lawsuits have recently been filed by employees claiming that their employers’ policies violate the Act.

The amendment and its potential impact

The amendment clarifies that it is not a violation of the Act for an employer “to take [or enforce] any measures or impose any requirements…intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations.”

The amendment also states that it “is a declaration of existing law and shall not be construed as a new enactment,” which may give Illinois businesses some grounds to deny employee exemption requests that are premised on this law. However, given the amendment’s June 1, 2022 effective date, there is a risk that employees could still cite this law and bring a lawsuit from now until next summer if their conscience-based objections are denied.

Another element of uncertainty is how the federal contractor vaccine mandate, CMS interim final rule, and OSHA ETS may impact the applicability of the Act before the amendment goes into effect next year. Given that federal law generally preempts conflicting state laws, employers may have an argument that the pre-amendment version of the Act is preempted by the federal vaccine mandates.

Illinois employers who wish to avoid the potential risk of litigation should consider whether they will temporarily grant conscience-based exemption requests, but then require compliance with any vaccination or testing requirements at the latest upon the Act’s amendment becoming effective, if not sooner in order to comply with the federal vaccine mandates, if and when those take effect.

Other states that protect belief-based objections to COVID-19 vaccination requirements

While Illinois has taken steps to prevent employees from raising conscience-based objections to employer COVID-19 requirements several states have taken the opposite approach and recently passed laws that expressly protect individuals who object to their employers’ vaccination-related requirements based on their conscience or personal beliefs. For example:

• Tennessee: On November 12, 2021, Tennessee passed a law prohibiting private businesses from compelling an individual to provide proof of vaccination or taking adverse action against an individual who refuses to provide it if the individual objects to receiving a COVID-19 vaccine “for any reason.”
• Texas: On October 11, 2021, an executive order was issued that prohibits companies from mandating vaccination of any individual who objects to vaccination for any reason of personal conscience.
• Utah: On November 16, 2021, Utah passed a law stating that employers who mandate vaccination or require proof of vaccination must waive the requirement if an employee submits a statement that vaccination would “conflict with a sincerely held personal belief.”

Due to the varying state approaches to belief-based objections to employer vaccination-related mandates, employers that operate in multiple states should consult with their legal counsel in order to ensure compliance with these new laws.