Employee Terminated for Social Media Posts Not Entitled to Unemployment Benefits

Employee Terminated for Social Media Posts Not Entitled to Unemployment Benefits

  Monday, June 12, 2023    Julie Tappendorf

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An Illinois Appellate Court recently held that an employee who had been fired for making threats against his co-workers on Facebook was not entitled to unemployment benefits. Termini v. Board of Review of IDES

A City truck driver posted on a Teamster union's Facebook page that he objected to his co-workers coming to work while exhibiting COVID-19 symptoms. According to the opinion, his posts read as follows:

This is really getting old. I’m sick of this. How is it that money comes before safety? Well, you’ve been warned. You better pray this doesn’t touch my life because I’ll take you all with me.

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You've been warned.

The City fired the driver as a result of his social media posts, and he filed an application for unemployment benefits. The City objected to his application on the basis that he was not eligible for unemployment benefits because he had been terminated for misconduct. The City argued the driver was dismissed because he used social media to "willfully and deliberately make threatening statements towards his coworkers" in violation of a law prohibiting harassment through electronic communication and the City's electronic communication policy. After the IDES granted him unemployment benefits, the City filed an administrative appeal before the ALJ, which also upheld the approval of benefits.

The City then appealed to the IDES Board of Review, which determined that the driver was not eligible for benefits because his public threat of violence in the workplace constituted "misconduct," which violated state law and the City's policies and disrupted the City's operations. The driver then filed a lawsuit, which case ultimately went to the Appellate Court.

The Appellate Court agreed that the driver was not entitled to unemployment benefits, finding that his social media postings constituted "misconduct" because they violated laws prohibiting harassment through electronic communications. The Court found his postings were an "illegal threat" because his statements, when read together, could reasonable be read as a threat of violence, whether the statements were interpreted to mean the driver would physically harm his co-workers or threaten to infect his co-workers if he were to contract COVID-19 from his co-workers.

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Most Recent Illinois Disaster Proclamation Will Expire May 11, 2023

Most Recent Illinois Disaster Proclamation Will Expire May 11, 2023

  Monday, May 01, 2023    Julie Tappendorf

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Quick update on the state of the State's disaster proclamation. As we reported on previously, Governor Pritzker announced a few months ago that Illinois' disaster proclamation would end on May 11, 2023, to correspond with the end of the federal disaster proclamation. On Friday, the Governor did issue a new disaster proclamation (you can read it here). This most recent proclamation will not last for a full 30 days but instead will expire on May 11, 2023.

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Remote Meetings After May 11th

Remote Meetings After May 11th

  Wednesday, February 15, 2023    Julie Tappendorf

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The Governor has announced his intention not to renew the COVID-19 disaster declaration beyond April, letting it expire on May 11, 2023. This means that as of May 12, 2023, public bodies will no longer be able to conduct remote meetings under the current "public health" provision contained in section 7(e) of the Open Meetings Act. 

There have been a few bills proposed in the Illinois General Assembly that would expand the "public health" provision of the OMA to authorize the "chief elected or appointed official" of the public body to make a determination that an in-person meeting would pose a risk to the health or safety of the members of the public body or the public rather than requiring that a state-issued disaster declaration be in place. See Senate Bill 103 and House Bill 1408. You may recall that similar legislation was introduced last session but was never adopted. We will keep our readers posted on the bills as they move through this session.

Of course, individual members of public bodies can still attend meetings electronically under the provisions of 7(a)-(d) of the OMA, so long as the public body has adopted a policy authorizing remote attendance and the member meets the statutory eligibility requirements for attending the meeting electronically. 

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Court Dismisses Lawsuit Based on Refusal of Employees to Get Vaccinated

Court Dismisses Lawsuit Based on Refusal of Employees to Get Vaccinated

  Friday, November 18, 2022    Julie Tappendorf

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Recently, an Illinois Appellate Court affirmed the dismissal of a lawsuit brought under the Illinois Healthcare Right of Conscience Act (Act) and denied two employees any recovery for their termination based on their refusal to receive a COVID-19 vaccine. Krewionek & Bosowski v. McKnight.

In August 2021, two employees at a dental and out-patient surgical office were discharged after they refused to comply with their employer’s rule requiring employees to receive a COVID-19 vaccination. The former employees then sued their employer, claiming a violation of Section 5 of the Act, which provides that:

It shall be unlawful for any person, public or private institution, or public official to discriminate against any person in any manner . . . because of such person’s conscientious refusal to receive, obtain, accept, perform . . . or participate in any way in any particular form of health care services contrary to his or her conscience. 

In November 2021, while this lawsuit was pending, the Illinois General Assembly passed a law amending the Act to carve out an exception for health mandates related to COVID-19. The Act now provides that it is not a violation of the act for individuals, entities, or public officials to impose requirements “intended to prevent contraction or transmission of COVID-19 . . . .” The amendment was passed as a declaration of existing law, and included a provision that it would “apply to all actions commenced or pending on or after” its effective date. 

The appellate court affirmed the trial court's dismissal of the employees' lawsuit, rejecting the argument made by the former employees that they did not believe the COVID-19 vaccines could prevent contraction or transmission of the coronavirus. The court noted that because the language of the exception covers measures intended to prevent the spread of COVID-19, and the former employees failed to argue that the vaccine mandate was not imposed with the intention to protect patients from contracting the virus, the dismissal of their case was proper. The court cited a U.S. Supreme Court case and the CDC website for the contention that vaccines are an effective tool to prevent and control disease, recognizing that while

some individuals may disagree . . . [these sources] support that the vaccines are intended to prevent the contraction and transmission of COVID-19.

Because the former employees’ lawsuit was “pending on or after” the date the amendment was passed, the court determined it was properly dismissed.

Post Authored by Erin Monforti & Julie Tappendorf, Ancel Glink

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Seventh Circuit Rejects Takings and Other Constitutional Challenges to Governor's COVID-19 Measures

Seventh Circuit Rejects Takings and Other Constitutional Challenges to Governor's COVID-19 Measures

  Thursday, June 09, 2022    Julie Tappendorf

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In response to Illinois Governor Pritzker's Executive Orders 2020-32, 2020-38, and 2020-43 (which included requiring residents to “stay at home,” compelling all “non-essential businesses” to temporarily close, and prohibiting gatherings of more than a specified number of people), several individuals and businesses filed suit against Governor Pritzker, claiming that his Executive Orders violated various provisions of the U.S. Constitution, including that the restrictions violated the First Amendment free speech, religious exercise, and assembly rights, their Due Process rights under the Fourteenth Amendment, and the Fifth Amendment’s Takings Clause. A federal district court dismissed the lawsuit, and the case was appealed to the Seventh Circuit Court of Appeals.

On appeal, the Seventh Circuit upheld the district court’s dismissal in Nowlin et al. v. Pritzker. The court determined that the individual plaintiffs did not establish the necessary injury in fact to satisfy Counts I through V. The court of appeals also dismissed Count VI (the Fifth Amendment takings claim filed by the businesses), finding that the businesses failed to establish that the Governor’s COVID-19 restrictions constituted a regulatory taking. Citing prior U.S. Supreme Court precedent discussing the burden of proof necessary to prove a taking by governmental regulation, the court reasoned that the businesses failed to show that Governor’s Executive Orders deprived the businesses of all or a significant part of their economically beneficial use. 

Post Authored by Cheyanne Pincsak and Eugene Bolotnikov, Ancel Glink

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PAC Issues Binding Opinion on Remote Meeting Agendas

PAC Issues Binding Opinion on Remote Meeting Agendas

  Friday, June 03, 2022    Julie Tappendorf

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The Public Access Counselor of the Attorney General's Office (PAC) just issued a binding opinion finding a public body in violation of the OMA for failing to include language on a meeting agenda informing members of the public how they could remotely attend a meeting of the public body that was held virtually. PAC Op. 22-007.

A village board of trustees posted an agenda of a regular meeting with language indicating that the board members would be attending the meeting virtually. A member of the public filed a request for review with the PAC office alleging that the board violated the OMA by not informing members of the public how they could attend the virtual meeting. The village responded that the meeting was broadcast on YouTube where members of the public could view it and that the village had publicized the meeting on its Facebook page.

The PAC determined that the village board violated the remote meeting procedures of section 7(e) of the OMA because it failed to include a web-based link or other information describing how members of the public could attend the virtual meeting. The PAC read various provisions of Section 7(e) together to make the determination that specific language (i.e., a web-based link, telephone number, or other access information) must be expressly stated on the agenda and that agenda must then be posted on the public body's website.

Public bodies that are meeting remotely should ensure that they include language on the agenda informing the public how they can attend the remote meeting, either in the form of a web-based link, telephone number, or other means of access, and also make sure the agenda is posted on its website. Although the OMA only requires public bodies to post agendas on their websites if a full-time employee of the public body maintains the website, the PAC interpreted section 7(e) more broadly to require public bodies to post agendas of remote meetings on their websites regardless of how their website is maintained.

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Court Properly Dismissed Challenge to City's Executive Order Requiring Early Closing for Liquor Establishments

Court Properly Dismissed Challenge to City's Executive Order Requiring Early Closing for Liquor Establishments

  Wednesday, June 01, 2022    Julie Tappendorf

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In response to the COVID-19 pandemic, the Mayor of the City of Carbondale issued Executive Order 2020-04 (EO 4) on June 2, 2020, changing the closing hour of existing beer gardens in the City from 1:59 a.m. to 10 p.m. The holder of a “beer garden” license from the City repeatedly refused to follow the closure requirement despite numerous police warnings. On June 4, 2020, the Mayor issued a five day suspension of the bar owner's license for violation of the EO 4.

The bar owner then filed a lawsuit against the City and several City officials, seeking to overturn the suspension and invalidate EO 4. The City filed a motion to dismiss the lawsuit and the circuit court ruled in the City's favor, dismissing the lawsuit.

The appellate court affirmed, agreeing with the dismissal of the lawsuit in Knoob v. City of Carbondale. The appellate court noted that the lawsuit asked the circuit court to issue an order declaring EO 4 invalid and preventing the City and its officials from enforcing that order. However, after the lawsuit was filed, the City had changed the closing time back to 1:59 a.m. As a result, the appellate court held that a court ruling on the validity of EO 4 would have no practical effect on the controversy between the parties since there would be no need to enjoin the City or any of its named officials from enforcing the order that was no longer in place. The appellate court also rejected the licensee's request for money damages since the licensee had alleged in his complaint that he had refused to follow the order and close his business early anyway.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Governor Extends Disaster Proclamation for Another 30 Days

Governor Extends Disaster Proclamation for Another 30 Days

  Wednesday, May 04, 2022    Julie Tappendorf

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Illinois Governor Pritzker issued another disaster proclamation last Friday that extends through May 29th. You can read it here. Since this disaster proclamation meets the requirements of section 7(e) of the Open Meetings Act, public bodies can meet remotely (or in a hybrid fashion) so long as they can make a localized determination that it is not practical or prudent for the body to meet in-person because of a public health crisis and the public body complies with all of the requirements of section 7(e).

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Appellate Court Rules on Local Government COVID Workplace Policies

Appellate Court Rules on Local Government COVID Workplace Policies

  Wednesday, April 27, 2022    Julie Tappendorf

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The Fourth District Court of Appeals recently issued two decisions upholding workplace policies requiring COVID-19 vaccination and/or testing for public employees.  

In Graham v. Pekin Fire Department, several current and former employees asked a Sangamon County court to issue a temporary restraining order (TRO) barring various public employers, Governor Pritzker, and the Illinois Department of Public Health from enforcing a workplace policy requiring all employees either to be vaccinated against COVID-19 or, alternatively, to undergo regular testing for COVID-19. The employees maintained that the vaccination and testing policy was invalid because only the IDPH has the authority to quarantine people and require them to be vaccinated or tested for contagious diseases, and that the vaccination and testing policy was discriminatory under section 5 of the Right of Conscience Act. The circuit court denied the employees' TRO petition.

After the employees appealed, the appellate court upheld the denial of the employees request for a TRO. The appellate court noted that the Illinois General Assembly recently enacted a statute that made it clear that it was not a violation of the Conscience Act for an employer to take measures to prevent the spread of COVID-19. The court also concluded that employers had the power to enact workplace safety rules, including the vaccination and testing requirement.

In Allen v. North Mac School District 34, a school district announced a policy in October 2021, stating that employees who did not provide proof of COVID-19 vaccination or comply with required weekly COVID-19 testing could be deemed ineligible to work and placed on a nondisciplinary administrative leave until the teacher complied with the policy, or subject to disciplinary action if a teacher failed or refused to comply. In March 2022, educators in various school districts filed an emergency motion for a TRO against numerous school districts and various state agencies and officials, including Governor Pritzker. The educators argued that (1) school districts lacked authority to require teachers to get a COVID-19 vaccination or submit to testing and (2) educators could not be compelled to take a COVID-19 vaccine or be subjected to weekly testing without first being afforded their right to due process. In April 2022, the Sangamon County circuit court ruled in favor of the educators and issued a TRO to stop enforcement of the policies.

On appeal, the appellate court vacated the TRO issued by the circuit court for several reasons. Specifically, although Section 2 of the Public Health Act affords an individual the right to due process if he or she does not consent to an order from the IDPH or a certified local health department, the court clarified that this case does not involve a situation where the IDPH or a certified local health department has ordered the educators to do anything. The appellate court also noted that the Act does not require a public school district to obtain a court order before it can place a teacher on unpaid administrative leave for refusing to get vaccinated or tested on a weekly basis. Instead, the court held that the school districts adopted lawful and reasonable workplace policies designed to protect students and school employees, and nothing in these policies restricted the educators’ activities, movement, or interactions anywhere outside of the workplace.

Post Authored by Eugene Bolotnikov, Ancel Glink

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Governor Extends Disaster Declaration for Another 30 Days

Governor Extends Disaster Declaration for Another 30 Days

  Monday, April 04, 2022    Julie Tappendorf

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Last Friday, the Governor extended the state disaster proclamation for another 30 days. You can access the updated disaster proclamation here. That means that public bodies can continue to conduct remote or hybrid meetings so long as they (1) make a local determination that a fully in-person meeting is not practical or prudent and (2) follow all of the other remote meeting requirements of section 7(e) of the Open Meetings Act for that meeting.

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BREAKING: Governor Extends Disaster Declaration Another 30 Days

BREAKING: Governor Extends Disaster Declaration Another 30 Days

  Friday, March 04, 2022    Julie Tappendorf

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UPDATED 3/7/2022 to include links to the new Disaster Declaration and Executive Order 2022-07 that were issued last Friday.

Today, Governor Pritzker extended the State's COVID-19 Disaster Declaration over all counties in Illinois for another 30 days. The Governor also issued EO 2022-07 extending a number of previously issued Executive Orders through April 2, 2022, including the EOs relating to cannabis licenses, Phase 5 reopening plan, EO 2022-06 which relaxed the mask mandate in most places, EO 2021-22 imposing vaccination and testing requirements for certain health care workers (as amended by EO 2021-23, 2021-27, and EO 2022-05) and EO 2021-28 imposing vaccination and testing requirements for day cares, among many others. The new EO 2022-07 also modifies certain mitigation measures at schools. Readers interested in learning how a particular extended EO has been modified should read through EO 2022-07. You can read the Disaster Declaration here and EO 2022-07 here.

As we noted earlier this week, the issuance of a state-wide disaster declaration relating to COVID-19 means that public bodies can conduct remote meetings under section 7(e) of the Open Meetings Act subject to the rules and regulations contained in that statute, including the head of the public body making a local determination that it is not practical or prudent to meet in person.  

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The Open Meetings Act, Remote Meetings, and COVID Measures

The Open Meetings Act, Remote Meetings, and COVID Measures

  Wednesday, March 02, 2022    Julie Tappendorf

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There have been a lot of questions recently about the relaxation of certain COVID mitigation measures (such as the mask mandate) and how these changes might affect public bodies in conducting future meetings under the Open Meetings Act. As of today, we don't know whether the Governor will extend his current disaster declaration that was issued on February 4th and is set to expire later this week so we are providing two potential scenarios.

If the Governor does issue another disaster declaration this week, then public bodies can choose to conduct their meetings remotely or in a "hybrid" fashion subject to the rules contained in section 7(e) of the Open Meetings Act. That section allows public bodies to meet remotely so long as certain conditions are met, including (1) the State has issued a disaster declaration relating to a public health situation that covers the public body's area and (2) the head of the public body makes a local finding/determination that it is not practical or prudent to meet in-person because of the public health situation and (3) the public body follows all of the statutory rules for these remote meetings, including ensuring public access, recording the meeting, taking roll call votes, etc. It will be up to individual public bodies (and specifically the head of that body) to determine whether local conditions are such that an in-person meeting is not practical or prudent due to the COVID-19 pandemic.

If the Governor does not issue another disaster declaration this week, then once the current declaration expires, meetings of public bodies will need to be conducted in person and remote attendance would have to follow the "traditional" rules under section 7(a)-(d) of the OMA would apply so long as the public body has adopted a policy to allow remote attendance under this statute. Those rules allow an individual member of the public body to attend remotely if there is a physical quorum of the body physically present at the meeting, the public body approves the remote attendance, and the member's absence is due to (1) personal illness or disability; (2) employment purposes or business of the public body or (3) a family or other emergency. 

We will keep you posted as more information comes out but stay tuned to what the Governor does over the next few days. As with all things COVID, the situation remains fluid and could change rapidly. 

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Appellate Court Finds Appeal of TRO in School Mask Mandate Challenge "Moot"

Appellate Court Finds Appeal of TRO in School Mask Mandate Challenge "Moot"

  Friday, February 18, 2022    Julie Tappendorf

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Many have been following the lawsuit filed by parents against the Illinois Governor, the IDPH, and the Illinois State Board of Education, among others, that challenged the State of Illinois' school mask mandate that had been enacted by state agency emergency rules. On February 4, 2022, a Sangamon County Judge issued a temporary restraining order (TRO) declaring the emergency rule "null and void" and restraining enforcement of Executive Orders 2021-18, 2021-24, and 2021-25. 

That ruling was appealed to the Illinois Appellate Court (4th Circuit), which issued a ruling yesterday declaring the matter "moot" because the emergency rules that were the subject of the circuit court's ruling had expired. Specifically, on February 15, 2022, the Joint Committee on Administrative Rules (JCAR) objected to and suspended the IDPH's renewal of the emergency rules relating to school mask mandates, meaning that the emergency rules had expired by their own terms on February 13, 2022. Since none of the rules that the circuit court found null and void are currently in effect, the appellate court ruled there was no longer a controversy for the appellate court to decide. Austin et al. v. Board of Education of Community Unit Sch. Dist. 300, et al., 2022 IL App (4th) 220090-U. 

One paragraph of interest in the appellate decision references the authority of local school districts to act on their own to address COVID-19. That language is reprinted below.

We note the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19. Thus, it does not appear the school districts are temporarily restrained from acting by the court's TRO.

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City Council's Remote Meeting in Violation of Open Meetings Act

City Council's Remote Meeting in Violation of Open Meetings Act

  Monday, February 14, 2022    Julie Tappendorf

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The Illinois Attorney General's Public Access Counselor (PAC) issued two new binding opinions recently, one dealing with remote meetings under OMA and one dealing with FOIA. We are reporting on the OMA opinion in today's post where the PAC found a City Council in violation of OMA for its remote meeting practices. PAC Op. 22-003. The opinion provides some guidance to public bodies on how the PAC interprets the public notice requirements for remote or hybrid (meeting that allows remote and in-person attendance) meetings held under section 7(e) of the OMA. 

A member of the public filed a request for review with the PAC alleging that a City Council provided inadequate notice of a remote meeting held on January 11, 2022. She claimed that although an agenda was posted at City Hall indicating that the City Council would be meeting on Jnauary 11th via Zoom, the agenda did not include a Zoom or other web-based or telephone access link for the public to attend the remote meeting. When she had contacted the City to request the link, it was provided to her via text message; however, she said the link was not provided in a timely fashion and she missed a portion of the meeting. 

The City responded that the City provided the Zoom link to her and she did, in fact, attend and participate in the City Council meeting. The City also noted that members of the public were welcome to attend the meeting in-person. In response to follow up questions from the PAC, the City noted that although the Zoom link was not posted on the agenda/notice, members of the public could request the link. The City also noted that the City did not have an audio or video recording of the meeting. 

The PAC determined that the City Council's remote meeting on January 11th was not in compliance with the OMA for several reasons.

First, the PAC determined that section 7(e) of FOIA requires a public body to post the remote meeting access information on its website with the meeting notice/agenda at least 48 hours in advance of the meeting. In this case, the agenda did not include information as to how the public could access the Zoom meeting, so the City Council did not provide adequate advance notice of the remote meeting. The PAC stated that the remote access information should be provided and accessible to the public during the 48 hour period before the meeting, and the statute expressly requires that the information be posted on the public body's website. The PAC stated that the website posting requirement in 7(e) of the OMA does not distinguish between public bodies who maintain their own websites nor did that provision consider the size of the public body. 

Second, although the City informed the PAC that members of the public could have attended the meeting in-person, the PAC found that the agenda did not provide the public with sufficient information about in-person access. The "location" information on the agenda stated it would be a "Zoom Meeting."

Finally, the PAC stated that the City violated the OMA by not making a verbatim audio or video recording of the remote meeting as required by section 7(e)(9) of the OMA. 

The PAC directed the City to (1) include all remote access information in the meeting notice/agenda in the future; (2) specify on the agenda when in-person attendance is allowed at any remote/hybrid meeting; and (3) make and keep a verbatim audio or video recording of future remote meetings.

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PPP Exclusion of Adult Entertainment Businesses Did Not Violate First Amendment

PPP Exclusion of Adult Entertainment Businesses Did Not Violate First Amendment

  Thursday, February 03, 2022    Julie Tappendorf

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The Seventh Circuit Court of Appeals recently ruled against a group of adult entertainment businesses that had filed a lawsuit to challenge the Small Business Administration's denial of benefits to the businesses under the Paycheck Protection Program (PPP). Camelot Banquet Rooms v. United States Small Business Administration.

When Congress enacted the PPP program to provide COVID relief funding to eligible businesses, it had expressly excluded businesses that present or derive more than a minimal gross revenue from live performances or depictions or displays "of a prurient sexual nature." 23 businesses that fall within this exclusion filed suit, claiming that the exclusion penalizes them from engaging in expressive activity protected by the First Amendment. The Seventh Circuit disagreed with the adult entertainment businesses, finding that the program does not restrict any First Amendment protected activities. Instead, by excluding the businesses from the PPP program, the federal government simply chose not to subsidize the adult entertainment, which does not implicate the First Amendment. The Court vacated the district court's preliminary injunction and remanded the case back for further proceedings.

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Court of Appeals Declines to Issue Injunction to Churches Based on 2020 Executive Order

Court of Appeals Declines to Issue Injunction to Churches Based on 2020 Executive Order

  Friday, January 14, 2022    Julie Tappendorf

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In early 2020, two religious institutions sued the Illinois Governor to challenge one of his Executive Orders that had restricted the number of persons who could attend in-person worship services to 10 people. The federal district court had denied the churches' request for a preliminary injunction to stop the Governor from enforcing the order, and the churches appealed. In June of 2020, the Court of Appeals ruled in the Governor's favor, finding that the challenged restriction did not violate the Free Exercise Clause of the First Amendment.

On remand back to the district court, the churches requested that the court issue a permanent injunction to stop enforcement of the restriction. The churches argued that subsequent decisions by the U.S. Supreme Court that came after the Court of Appeals' ruling were favorable to their argument that capacity limits on in-person worship violate constitutional rights. The district court denied the request, finding that the churches' challenge was "moot" because the Governor's EO had been subsequently amended to remove the capacity limits for places of worship. The churches appealed again to the Seventh Circuit Court of Appeals arguing that the federal court should rule on the legality of the previous restriction because the Governor might, in the future, impose a similar restriction. The churches asked the federal court to enjoin the Governor from reinstating the sort of capacity limit that was in force in spring of 2020.

In a ruling this week, the Seventh Circuit Court of Appeals agreed with the district court that injunctive relief was not appropriate in this instance. The Court of Appeals stated that federal courts should not assume that a state official will refuse to follow U.S. Supreme Court precedent, nor should a federal court grant injunctive relief based on predictions of what the Governor might do in the future. The Court of Appeals stated that if the State imposes an objectionable order in the future, the churches could file suit then, but concluded that "this suit is over." Elim Romanian Pentecostal Church et al., v. Pritzker (7th Cir. January 11, 2022).

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U.S. Supreme Court Imposes "Stay" On OSHA Vaccination Mandate But Upholds Vaccination Mandate for Health Care Workers

U.S. Supreme Court Imposes "Stay" On OSHA Vaccination Mandate But Upholds Vaccination Mandate for Health Care Workers

  Thursday, January 13, 2022    Julie Tappendorf

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In two companion rulings today, the U.S. Supreme Court imposed a "stay" on the Federal OSHA Rule requiring employers with 100 or more employees to impose vaccination/testing requirements on employees in National Federation of Independent Business v. Department of Labor and upheld the HHS vaccination mandate for covered health care workers at providers that receive Medicare and Medicaid funding in Biden v. Missouri. In both rulings, the Supreme Court's decision turned on the Court's analysis of the statutory authority for these federal agencies to establish the mandates that were being challenged in these lawsuits.

In the NFIB v. Department of Labor ruling, the Supreme Court determined that the Department of Labor has the power to set workplace safety standards but not broad public health measures. In the majority's opinion, OSHA's vaccination mandate went beyond workplace safety and employee hazards to encompass public health measures, which the Court determined was outside OSHA's jurisdiction. As a result, the Court stayed enforcement of the OSHA mandate while the substantive challenge to the rule proceeds in the Court of Appeals. We should expect the Illinois Department of Labor to follow up with its own guidance regarding implementation of their new rule consistent with the Supreme Court's ruling since the Illinois rule simply adopted the federal ETS by reference.

In contrast, in the Biden v. Missouri ruling, the Court found sufficient authority and jurisdiction for HHS to require health care providers who receive federal funding to impose vaccination requirements on their health care workers. The Court referred to specific provisions in the law where Congress has authorized the HHS to promulgate, as a condition of a facility’s participation in the programs, such “requirements as [he] finds necessary in the interest of the health and safety of individuals who are furnished services in the institution.” The Court further stated that the vaccination mandate "fits neatly within the language of the statute. After all, ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm. It would be the 'very opposite of efficient and effective administration for a facility that is supposed to make people well to make them sick with COVID–19.'” 

There will likely be more detailed information about these two rulings to follow but we wanted to get the word out that these rulings came out today. 

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Quorum Forum Ep 60 - Rules Learned and Applied During the Pandemic

Quorum Forum Ep 60 - Rules Learned and Applied During the Pandemic

  Thursday, January 13, 2022    Julie Tappendorf

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Ancel Glink just released its 60th episode of its podcast, Quorum Forum - Quorum Forum 60: Rules Learned and Applied During the Pandemic

The COVID-19 pandemic is still a prominent part of our everyday lives, as the Delta and Omicron variants continue to impact our communities. In this episode, Ancel Glink shares some insight from the 2021 Illinois Library Association Conference on all things COVID, from remote meetings to vaccine mandates.

Call the Quorum Forum Hotline (312.601.9185) to tell us about your experience as an employer or employee during the pandemic, or email your questions to podcast@ancelglink.com.

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Appellate Court Vacates TRO that Stopped Enforcement of State Agency Vaccination Policy

Appellate Court Vacates TRO that Stopped Enforcement of State Agency Vaccination Policy

  Wednesday, January 12, 2022    Julie Tappendorf

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An Illinois Appellate Court recently vacated a temporary restraining order (TRO) that a trial court granted to prohibit a number of state agencies from enforcing a workplace policy requiring their employees to undergo vaccination or testing for COVID-19. Glass v. Illinois Department of Corrections.

In September, the Illinois Governor issued an Executive Order requiring employees at state-owned or operated congregate facilities (those operated by the VA, DHS, Department of Corrections, and Department of Juvenile Justice) to be vaccinated. A number of state employees in these agencies objected to the vaccination requirement and filed a lawsuit to challenge it. Their lawsuit claims that the state lacked legal authority to require vaccinations, that the mandate violates the Health Care Right of Conscience Act, 745 ILCS 70/1 et seq., and that the mandate is discriminatory and violates public policy. 

In November, the employees filed a motion for a Temporary Restraining Order (TRO) to stop enforcement of the mandate while their case proceeded. The state agencies argued that the Illinois Labor Relations Board had sole jurisdiction over the employees' claims and that the employees did not meet the TRO standards. The trial court granted a TRO to prohibit enforcement against some of the employees, and the state appealed that ruling to the Appellate Court.

The Appellate Court did not get into the substance of the challenge or the standards for a TRO, instead finding that the trial court did not have jurisdiction over the employees' challenge to the mandate as the ILRB has exclusive jurisdiction over claims of unfair labor practices. As a result, the TRO was vacated.

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Illinois Department of Labor Adopts Federal OSHA Vaccination/Testing Rule

Illinois Department of Labor Adopts Federal OSHA Vaccination/Testing Rule

  Tuesday, January 11, 2022    Julie Tappendorf

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Last Friday, the Illinois Department of Labor adopted by reference the federal OSHA rule requiring vaccination or testing of employees by certain covered businesses (Emergency Temporary Standard or ETS), as follows:

The Department hereby adopts as a rule of the Department, through incorporation by reference, the amendments to 29 CFR 1910, 1915, 1917, 1918, 1926, and 1928 found in 86 FR 61402, published November 5, 2021, titled COVID-19 Vaccination and Testing; Emergency Temporary Standard. The effective date for this Standard shall be January 24, 2022, and the Standard shall expire on July 24, 2022.

Although the federal ETS only applies to private businesses (non-governmental), some states, including Illinois, have expanded OSHA rules to also apply to state and local governments. As a result, Illinois local governments with 100 or more employees (including municipalities, park districts, libraries, etc) should get ready to implement the new vaccine and testing requirement over the next few weeks. 

Note that although the new Illinois rule goes into effect on January 24, 2022, the Department has provided some time for covered employers to come into compliance. Deadlines for the adoption of vaccination policies and implementation of the various requirements of the new rule are posted on the Department's website (and reprinted below).

It is important to understand that even though the federal ETS has been challenged in multiple lawsuits and emergency stay requests, there is currently no legal restriction that would excuse implementation by covered employers. That could change as we wait to see how the U.S. Supreme Court decides the current challenges to the federal ETS that are in front of that Court. 

In sum, the federal ETS rule is now effective (as of January 10th) and requires covered private businesses (private businesses with 100 or more employees) to comply with the vaccination and testing requirements. The Illinois Department of Labor rule goes into effect on January 24th, and will expand the federal ETS to also require government employers with 100 or more employees to adopt vaccination policies and implement the new rule by February 24th.

Table of effective dates	​	​
Please see OSHA Standard 1910.501 for paragraph references.	​	​
Requirement	February 24, 2022	March 25, 2022
Establish policy on vaccination (paragraph (d))	X
Determine vaccination status of each employee, obtain acceptable proof of vaccination, maintain records and roster of vaccination status (paragraph (e))	X
Provide support for employee vaccination (paragraph (f))	X
Require employees to promptly provide notice of positive COVID-19 test or COVID-19 diagnosis (paragraph (h))	X
Remove any employee who received positive COVID-19 test or COVID-19 diagnosis (paragraph (h))	X
Ensure employees who are not fully vaccinated wear face coverings when indoors or when occupying a vehicle with another person for work purposes (paragraph (i))	X
Provide each employee information about the ETS; workplace policies and procedures; vaccination efficacy, safety and benefits; protections against retaliation and discrimination; and laws that provide for criminal penalties for knowingly supplying false documentation (paragraph (j))	X
Report work-related COVID-19 fatalities to IL OSHA within 8 hours and work-related COVID-19 in-patient hospitalizations within 24 hours (paragraph (k))	X
Make certain records available (paragraph (l))	X
Ensure employees who are not fully vaccinated are tested for COVID-19 at least weekly (if in the workplace at least once a week) or within 7 days before returning to work (if away from the workplace for a week or longer) (paragraph (g))		X

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