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Employee Vaccinate-or-Test Requirements Upheld

In February 2022, a Sangamon County judge, Judge Grischow, issued a temporary restraining order (“TRO”) against scores of school districts in three cases—two of which (Allen and Austin) received the most attention—that were consolidated into one order. The TRO invalidated three specific COVID mitigation measures imposed on schools by the State, though the TRO was later vacated on other grounds by the Illinois Supreme Court. At that time, the TRO garnered massive attention, but it was not the only COVID litigation pending in Sangamon County. Since then, motions for TROs in two more COVID-mitigation cases have been decided by Sangamon County judges (including one by Judge Grischow) and been decided on appeal to the Fourth District appellate court, which has jurisdiction over Sangamon County cases. Both involved the requirement that certain public employees, including school employees, be vaccinated against COVID or undergo weekly screening testing.

The first set of cases, consolidated as Glass, et al. v. Department of Corrections, et al., involved employees of a school district, a fire department, and various state agencies. All challenged the legality of the public employers’ vaccinate-or-test requirement and were heard by a different Sangamon County judge. The trial court judge denied the employees’ TRO motions, and the employees appealed. On April 13, 2022, the Fourth District appellate court voted 2-1 to uphold the trial court’s decision. In doing so, the appellate court ruled that the trial court did not abuse its discretion in finding that the vaccinate-or-test requirement was permissible under the Health Care Right of Conscience Act (“HCRCA”) and the Department of Public Health Act.

In ruling on the HCRCA claim, the court considered Public Act 102-667, which amends the HCRCA to clarify that mandated COVID mitigation measures do not violate the HCRCA.  Although the amendment does not go into effect until June 1, 2022, the appellate court ruled that because the HCRCA was ambiguous as it existed before the amendment, the trial court’s reliance on the amendment was not an abuse of discretion, and the appellate court therefore upheld the denial of the TRO.

As to the plaintiffs’ claim that the vaccinate-or-test requirement violated the Department of Public Health Act, the appellate court ruled that the mitigations were a form of workplace safety rules rather than a type of quarantine.  Thus, the Department of Public Health Act did not apply to the mitigation measures.

The second appeal was in Allen v. Board of Education of North Mac CUSD 34, which was one of the cases in the February litigation. The recent appeal stemmed from a second TRO issued by Judge Grischow against the Chicago Public Schools (the first having been issued back in February). CPS had continued to insist that employees be vaccinated against COVID or undergo weekly testing. The February TRO having been vacated by the Illinois Supreme Court back in February, Judge Grischow issued a new TRO to prevent CPS from continuing to implement its vaccinate-or-test requirement. On April 20, 2022, the Fourth District appellate court voted 3-0 to vacate the TRO. The appellate court ruled that the Department of Public Health Act affords due process for individuals who object to a quarantine or isolation order issued by the IDPH or a local health department, but that the Department of Public Health Act “does not state a public school district must obtain a court order before it can place a teacher on unpaid administrative leave for refusing to either get vaccinated or tested on a weekly basis.” In other words, the appellate court held that the quarantine and isolation procedures set forth in the Department of Public Health Act do not apply to health and safety rules and policies adopted by public entities such as public school districts.

While these two appellate decisions upheld workplace requirements that employees be vaccinated or undergo weekly screening tests under Illinois law, and they align with a Seventh Circuit decision from last year involving Indiana University under federal law, other federal courts in other contexts have reached different conclusions (see, e.g., NFIB v. DOL & OSHA, 142 S.Ct. 661 (2022) (overturning OSHA’s vaccinate-or-test mandate); Sambrano v. United Airlines, No. 21-11159 (5th Cir. Feb. 17, 2022) (overturning United’s vaccination mandate)). Thus, schools considering such a workplace requirement—or other COVID mitigations for students or staff, where the Department of Public Health Act also has been at issue—should consult with legal counsel before doing so.

If you have any questions concerning these cases or any other recent COVID lawsuits, please contact Jason Manning or Frazier Satterly in our Litigation Practice Group.