Windsor, IL. (ECWd) -
Windsor School Superintendent Erik Van Hoveln recently rejected the objections to "vaccination and testing" letters he received from school employees. We believe he is wrong, as explained below.
In his rejection letter, Van Hoveln claims the following, among other claims:
- Because the Executive Order and Emergency Rules allow a person to not vaccinate for religious, medical, or other reasons, we are deeming your objection under the Act as an objection to testing
- Please be advised that the Act you cite [Illinois Health Care Right of Conscience Act] does not apply to exempt you from the requirements of Executive Order or Emergency Rules
- The Act provides protection against discrimination for medical providers who’s sincerely held beliefs prohibit them from providing or performing a particular medical service, and rights for patients regarding their medical care
- It does not apply to employees generally and does not serve as the basis to avoid compliance with a state mandate for school personnel
- Please note that if you do not comply and are excluded from school, the District reserves the right to place you in unpaid status
DeKalb County entered into a settlement agreement after they failed to get a the case dismissed in its entirety - and it was based on the HCRCA. We are currently working on obtaining a copy of that settlement agreement.
As to bullet point numbers 2, 3, and 4, we must note that nothing in the Executive Order or Emergency Rules preempt the Health Care Right To Conscience Act, and therefore the Act trumps the EO and Emergency Rules. Section 14 of the HCRCA says that it supersedes all other Acts or parts of Acts inconsistent with the HCRCA (which includes any Act authorizing EOs or emergency rulemaking).
The Superintendent's assertion that the Act only applies to medical providers and patients is patently false. In Moncivaiz v DeKalb County, ND IL, 2004, the court denied a Motion to Dismiss based, in part, on the Health Care Right To Conscience Act, when it stated:
"A governmental employer cannot punish an employee for expression of matters of public concern. See Lickiss v. Drexler, 141 F.3d 1220, 1222 (7th Cir.), cert. denied, 525 U.S. 1002 (1998). Plaintiff has alleged enough to survive this motion to dismiss"
"The HCRCA prohibits discrimination in promotion by any person or public entity because of an employees conscientious refusal to participate in "any particular health care services contrary to his or her conscience." 745 ILCS 70/5. The HCRCA provides an action for damages is available against "any public or private person, association, agency, entity or corporation" that injures another party by an action prohibited by the Act."
"it seems unlikely the Illinois legislature intended the Tort Immunity Act to protect local governments and their employees from liability for refusing to hire or denying a promotion in violation of HCRCA in light of the express language in HCRCA making discrimination in hiring and promotion based on matters of conscience unlawful and providing an express cause of action against "any public or private person, association, agency, entity or corporation"
The HCRCA does apply to employees, generally, and does serve as a basis to avoid compliance with alleged state mandates for school personnel. See Vandersand v. Wal-Mart Stores, Inc., 525 F. Supp. 2d 1052, 1057 (C.D. Ill. 2007) where the court stated the ACT applies to all persons, not just employees of the healthcare field. "Vandersand also is covered by the plain language of the Right of Conscience Act, and so, he states a claim in Count II, also."
Further investigation shows that in April 2021, several students of Loyola University prevailed in their legal challenge to certain EO restrictions and mandates (read published articles HERE and HERE). Also feel free to read Liberty Counsel's letter to Loyola University (HERE).
We found two attorneys who have published their opinions on the applicability of the HCRCA to the EOs and Emergency Rules:
- Jeffery Friedmen Law considers the HCRCA as may be enforceable (HERE)
- Dalton-Tomich Law - while he doesn't out-right deny its enforceability towards vaccine requirements, he writes that "dubious religious exemption claims may increase public and judicial skepticism in the future." (HERE)
ALL employers (public and private), according to the HCRCA, are subject to treble damages and attorney fees should employees prevail in court on allegations of violations of the HCRCA.
Finally, in Rojas v Winnebago, in an Order striking Winnebago County's Affirmative Defense using the TORT Immunity Act, the Court found that the Health Care Right of Conscience Act trumped the TORT Immunity Act, as a more specific Act, using the maxim of statutory interpretation (this case is still an ongoing case).
If Van Hoveln's letter was the opinion from the school attorney, may we suggest they find new legal counsel?