Copyright 2022 All Rights Reserved.

August 18, 2022

School Superintendent Wrongly Claims Health Care Right Of Conscience Act Only Applies To Healthcare Workers –

By John Kraft & Kirk Allen

On September 25, 2021

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).

Glenview School District also acknowledged the HCRCA applies to its employees (HERE and 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?

SHARE THIS

Share on facebook
Share on twitter
Share on print

RELATED

12 Comments
  • Dave
    Posted at 19:28h, 25 September

    What is dubious is the Governor’s Executive Order and Emergency Rules that supposedly allows Illinois state govt to suspend the Illinois constitution’s Bill of Rights

  • Truth Teller
    Posted at 22:03h, 25 September

    And why exactly are you also becoming anti vaxx along with anti. mask? During a public health emergency government can make vaccines mandatory. This pandemic will never come under control until everyone who can be vaccinated gets vaccinated.

    If you want to quote Court cases, Massachusetts v Jacobson placed limits on your absolute independence during public health emergency. In 1905 Boston could compel their citizens to be vaccinated.
    To be able to go to school children can be also compelled to get vaccines against

    measles, whooping cough and other childhood illnesses.

    Employees can be compelled during their employment to have drug tests as part of their employment

    Apparently you want to have the Delta variant to spread. Those who refuse to get vaccinated are selfishly putting others people at risk. The Delta variant is more contagious and is making younger people sicker and they are dying

    States like Idaho, Alaska along with Southeastern states who refused masking or prioritize vaccines are seeing overwhelmed hospitals and high death rates. I guess you’d like Illinois to go that route of high infections rates and high death rate

    • Paul Kersey
      Posted at 07:18h, 26 September

      Ignore fascist pricksters trolls peddling fear of a non-existent “pandemic “.
      Still waiting for so called COVID-19 to hit the streets as I never stopped working and never met anyone who got sick.
      They used PCr to label normal deaths as covid and murdered people with regular flu and pneumonia by denying treatment then finishing them off with ventalators and remdesavir.

      All this to get the poison death shot in your arm and start the final solution fourth reich Holocaust with millions dead from the injection in the last
      Nine months they are just getting started.

      Don’t wear a deadly mask! It is the fourth reich swastika and is a blowtorch on cancer and disease

      Don’t get tested! Testing gives them power to tule by executive order

      Above all avoid the death shot! Get fired, move… do anything to avoid it while the courts catch up with the criminals!

    • PK
      Posted at 08:46h, 26 September

      Which states are unlike Massachusetts? Until then, “Truth Teller’s” plainly put affinity for big government appears to enable their making uneducated guesses.

      Does “TRUTH TELLER” believe the IDPH pie chart too?

  • PK
    Posted at 23:05h, 25 September

    Another quote from the Dalton -Tomlich Law article: “Good employer-employee relationships aren’t built on a battle of rights; they often require a level of mutual sacrifice.”

    Let’s remember the context of EO 2020-03 early last year and the authoritarian manner of Governor Pritzker with his heavy-handed executive agencies ISBE and IDPH on EO 2021-20 this year. Remember too how ISBE acted on threats to revoke certain schools status in what was found to have been a willful disregard for IDPH’s role in administrative law. It’s possible, if not likely, that Pritzker’s learned agency heads are embolden away from adhering to administrative law by Pritzker, a registered attorney and member of both Chicago and Illinois bar associations.

    Sacrifice poor legal council? If Windsor School Superintendent Erik Van Hoveln won’t take the suggestion, perhaps his employer, the Windsor School Board, can make it mutual.

  • Dennis Finegan
    Posted at 05:40h, 26 September

    What is dubious is the resistance to be vaccinated or wear a mask. Hope you don’t get sick, really. Can’t see taking the risk of being severly ill, or even dying, to avoid a shot in the arm or wearing a mask, all the while shouting “My Freedom” in a whisper.

    • PK
      Posted at 10:57h, 26 September

      Along with the four single use plastic water bottles conspicuously displayed on the table near Governor Pritzker’s press conference lectern, I’d like to add a bottle conscientiousness in hopes that he and his admin will drink some of it.

  • jannie
    Posted at 07:51h, 26 September

    I just don’t get it – some just don’t seem to understand that this is a health emergency – if people would wear a mask get vaccinated. I’m wonder how many of these don’t get the flu shot, or don’t have their kids get the measles vac, etc. A matter of conscience ha. I don’t think I should have to “pay” which I will in higher health care costs due to these people refusing to get vaccinated. Yes, I don’t like getting shot either, but did, why because I have some common sense – Covid isn’t the common cold, it’s bad stuff.

    • JIMBO
      Posted at 09:13h, 26 September

      Commenters don’t have to comprehend contents of this article (IHCRCA, case law, or the two attorney opinions) in order to keep their version of “common sense.” Unfortunately, “JANNIE” doesn’t even have to read the article or the documents attached to add a ‘ha”.

  • Mags
    Posted at 10:15h, 26 September

    Here are photo’s from the Democrat cocktail party from 9/24/2021.

    Do they look afraid of COVID or the DELTA VARIANT? They are playing you.

    Take off the damn masks and wake up.

    They are laughing at you.
    https://twitter.com/GOPNorthfield/status/1441794769886318592

  • Frank Miller
    Posted at 13:42h, 26 September

    Massive fraud exposed: State of Illinois school districts receive millions in funding to support universal masking and vaccine mandates.

  • Tony
    Posted at 00:20h, 27 September

    Went apple picking to IN today. Stopped at a convenience store and the orchard store as well. Not a mask requirement in sight. Sure some Illinoisans wore masks anyway, but otherwise it was absolute freedom.

    Families with kids. Different groups of people piling together into the tractor or horse drawn carts to take them to the picking areas. Everyone having a good time.

    This happens every year, at this and many other orchards everywhere, for a few months. Why aren’t we hearing about these places being super spreaders?

$