Part I – Illinois Businesses and Vaccination Mandates
Citing efforts to combat the COVID-19 Delta variant, vaccine mandates have been recently enacted by both the federal government and a number of state governments. The mandates seem simple at first glance, but a number of questions are left unanswered. In this blog we’ll walk you through the recent Illinois vaccine mandate and discuss some of these open questions. We’ll address the Federal mandates in Part II.
Illinois Vaccination Mandate.
On August 26, 2021, Governor J.B. Pritzker issued Executive Order 2021-20 (also known as Covid-19 Executive Order No. 87) which not only reinstated the mask requirement but also introduced the first state-wide COVID-19 vaccination mandate. For more information about the mask mandate portion of the Order and its impact on Illinois businesses, visit our blog article.
The new Illinois vaccine mandate requires health care workers, school personnel, higher education personnel and students, and state employees and contractors who work at state-owned or operated congregate facilities (state run nursing homes and prisons) to be fully vaccinated. First doses (or the only dose with a single dose vaccine) were due on September 19, 2021, with the second does due by October 4. Employees working for state owned or operated congregate facilities must have both doses of the two-dose COVID-19 vaccine series or the single dose COVID-19 vaccine no later than October 19, 2021.
What About Medical Exemption or Religious Exemptions from Vaccination?
Employees with medical conditions where the vaccination is “medically contraindicated” (meaning the vaccination could be harmful to the employee), including any individual who is entitled to an accommodation under the Americans with Disabilities Act or any other law applicable to a disability-related reasonable accommodation, or Employee who’s sincerely held religious belief, practice, or observance would be violated by the vaccination mandate are exempt from the vaccination requirement but they must follow the weekly testing protocol outlined in the Order.
What if an Employee Refuses to be Vaccinated?
The Illinois Department of Public Health’s Mask and Vaccine Requirements FAQ’s states that individuals covered by the requirement to be vaccinated can choose to be tested on a weekly basis, rather than be vaccinated, regardless of the reason that they choose not to be vaccinated. That means an employee who does not fall under the medical or religious exemption can still refuse the vaccination and be allowed to work, provided they follow the required testing protocol.
However, the FAQ goes on to say that an employer may choose to impose stronger health and safety requirements beyond the requirements of the Executive Order, such as permitting exceptions and weekly testing only for individuals with a medical or religious exemption. If an employer adopts a policy that requires vaccination and only allows testing as an option for medical or religious exemptions, then an employer can refuse entrance to any worker that fails to vaccinate and does not fall within an exemption.
Weekly COVID-19 Testing as an Alternative to Vaccination.
Employers who wish to allow unvaccinated workers continue to work must implement a testing policy that follows these rules:
- Testing must be at least weekly, though employers can require more frequent testing.
- Employees should seek viral testing, preferably a PCR test if available. Tests must have Emergency Use Authorization by the FDA or be operating per the Laboratory Developed Test requirements by US Centers for Medicare and Medicaid Services.
- The employer can provide on-site testing, but that is not required.
- If the employer does not provide on-site testing, the employer must obtain proof or confirmation from the employee of a negative test result before allowing them to enter the facility.
- Antibody tests should not be used to diagnose a current infection and are not recommended to meet the requirements of Executive Order 2021-22.
- Proof of a negative test should include a paper or electronic copy of the negative test with sufficient personally identifiable information on the test result for the facility or school to ensure the specimen and result do in fact apply to the individual required to test.
However, President Biden’s recent Executive Order could overrule the testing exception. The President has ordered all health-care facilities that receive federal Medicaid or Medicare funding to mandate vaccines for their workforces with no testing option.
Must Employers Pay for COVID-19 Testing?
The Executive Order does not require employers to pay for testing if an employee is not fully vaccinated. However, pursuant to a federal Executive Order and guidance from CMS, Department of Labor, and Department of Treasury, health plans must provide coverage for COVID-19 diagnostic tests for individuals who are asymptomatic and who have no known or suspected exposure to COVID-19. Such testing must be covered without cost sharing, prior authorization, or other medical management requirements.
What if Employees Refuse COVID-19 Testing?
According to the State’s guidance, workers that fall within the Executive Order who do not provide proof of vaccination or follow the required testing protocol must be prevented from entering the workplace or covered facilities. This is not optional to the employer. Employers have the duty to make sure the testing protocol is being followed for unvaccinated employees.
What if an Employee Receives a Positive COVID-19 Test Result?
Employers should not allow that employee to enter the premises. The IDPH’s isolation and precautions protocols in place at the time of the positive test should be followed.
What about Illinois Employers not covered by the Executive Order?
The Executive Order says “All entities are encouraged to implement robust vaccination and testing programs to reduce the spread of COVID-19.” While not an express requirement to mandate vaccination or testing programs, it shows the state’s position that all employers have an affirmative obligation to take precautions. The Illinois Department of Public Health (“IDPH”) has a list of minimum workplace safety requirements. For example, employers can require face masks, temperature screenings and sending employees home if they exhibit COVID-19 symptoms. Further, the IDPH acknowledges that private employers can make decisions regarding immunizations requirements of its workforce.
Should you have any questions about vaccination requirements or testing protocols for your business, or would like to schedule a free initial consultation, you contact Navigant Law Group, LLC at (847) 253-8800 or contact us online.
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