by Michael Castaldo III
The Health Care Right of Conscience Act (“HCRCA”) was enacted to enable certain professionals to refuse to receive or participate in healthcare practices that are contrary to their personal or religious beliefs. (745 ILCS 70/1 et seq.) The Act recognizes that people and organizations hold different beliefs about whether particular healthcare services are morally acceptable and thus protects the right of conscience of all persons who refuse to obtain, receive, or accept health care services and medical care. In furtherance of that public policy, the Act prohibits all forms of discrimination against those refusing to act contrary to their conscience in providing—or refusing to obtain, receive, or accept—health care services and medical care.
Recently, some employees have cited the HCRCA in attempting to circumvent COVID-19 vaccination and testing requirements. In such situations, employees would claim in one way or another that it is against their sincerely held religious beliefs to receive any vaccination related to COVID-19. These type of objections often involve “moral concerns” about injecting a “harmful foreign substance” into their bodies, or the manufacturing and testing process used in the development and creation of the COVID-19 vaccines.
To close the arguable loophole created by the HCRCA, Governor Pritzker signed P.A. 102-0667 (the “Amendment”) into law on November 8, 2021. The Amendment clarifies the Act’s intent such that it cannot be abused or misinterpreted to jeopardize workplace safety. The Amendment is also aimed at foreclosing on the possibility that the Act will be used to defeat employers’ COVID-19 vaccination requirements.
The Amendment accomplishes this by stating that it is not a violation of the Act to impose measures intended to prevent contraction or transmission of COVID-19. The Amendment further reinforces the recent mandates of employers who, in many cases, have been taking similar workplace measures to prevent the spread of communicable diseases for decades.
In particular, the Amendment states that it is not a violation to enforce any requirements that, among other things, involve provision of services by a physician or health care personnel intended to prevent contraction or transmission of COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations. Given the existing guidance provided for by the Centers for Disease Control and Prevention (“CDC”), this legislation can be interpreted to mean that it is not a violation of the Act to terminate or exclude an employee due to non-compliance with an employer’s COVID requirements.
Moreover, the clarifications provided for in the Amendment are “declarative of existing law and are not to be construed as a new enactment.” Although this Act does not become effective until June 1, 2022, by declaring that the Amendment is intended to clarify existing law, the Amendment is expected to apply to all litigation on this issue.
Lastly, the Amendment reiterates it is not intended to affect any right or remedy under federal law. Although challenges to COVID-19 prevention measures will no longer be available under the Act, there still exists some potential form of relief under federal laws such as the Title VII of the Civil Rights Act or the Americans with Disabilities Act. However, an individual’s ability to prevail is much more difficult under their federal laws compared to the pre-Amendment Act.
Employers still must carefully weigh requests for exemption from any COVID-19 prevention measures, but can now reject arguments that the HCRCA prohibits them from enforcing mandatory vaccination requirements. If you have any questions or concerns related to the implications of this Amendment, we recommend you contact your attorney.