Gov. JB Pritzker's deadline for requiring some professionals, including all PK-12 grade teachers and staff, to get their first dose of the COVID-19 vaccine has passed, which means teachers have three options: give proof they've been vaccinated, test for COVID-19 every week, or be excluded from the campus.
But some teachers are choosing a fourth option: threatening to sue their districts under the Illinois Health Care Right of Conscience Act, or HCRCA.
It's a dilemma districts are facing across the state, including in the Jacksonville School District #117
"You're either going to make a decision that's going to defy a mandate and upset a substantial amount of people in your community that are supportive of the mandate, or make a decision that puts the financial stability of the district potentially at risk," said Jacksonville Superintendent Steve Ptacek.
Ptacek says Jacksonville and other districts have seen teachers threaten to sue if schools enforce the vaccine and testing mandate.
They claim this is a violation of the Illinois Health Care Right of Conscience Act, which prohibits, "all forms of discrimination, disqualification, coercion, disability or imposition of liability upon such persons or entities by reason of their refusing to act contrary to their conscience or conscientious convictions in providing, paying for, or refusing to obtain, receive, accept, deliver, pay for, or arrange for the payment of health care services and medical care. "
In short, it says you can't discriminate against employees for refusing a form of medical care that goes against their conscience.
The law allows workers to seek three times their wages in damages.
If a teacher's salary is $50,000, they could win more than $150,000, plus other fees.
Ptacek says it's a horrible situation for district leaders to be put in.
He's been working in education for more than two decades, and says he's never felt so compelled to advocate for a cause.
Ptacek penned this letter to state leaders, asking for more clarification on the consequences of choosing either option: defying the mandate, or being targeted by the lawsuits.
"The 'rules' that school boards, district leaders, and district taxpayers desperately need are very simple. This is the first time in my twenty-six years in education, eighteen as an administrator, I have contacted a state agency with a letter of this tone and magnitude. We need your help," Ptacek wrote.
He went on to say that more work needs to be done to remove or "substantially lessen the legal risks" school districts are currently assuming.
Ptacek says that Jacksonville has been accepting medical and state guidance since the start of the pandemic, and they are not questioning the substance of the governor's mandates.
Instead, he and other leaders are questioning how they can protect themselves if lawsuits using the HCRCA are filed against them.
Carl Draper, an employment attorney with Feldman, Wasser, Draper & Cox, says it may be unfortunate from a public health perspective, but from a legal perspective, the timing of this law could challenge the governor's emergency powers.
"This law was adopted in 1998 after most of that emergency authorization power was already on the books, so the courts will interpret this as modifying and superseding the other emergency preparedness laws," Draper explained.
Draper says there haven't been many lawsuits applying vaccination debates to the HCRCA, but there was one in March of 2020, and the decision puts more power in teachers' hands.
"The appellate court sided with the employee on every argument about the breadth of this," Draper said. "That's very powerful for individuals who object to the vaccination requirement, and even so much as the testing."
And the legal implications could be even greater for the governor.
"It calls into serious question the authority of the governor to enforce these emergency orders he's relied on for the past 18 months," Draper said.
Teachers who claim exemption under this act will still be allowed in Jacksonville classrooms until the district gets the clarification they're looking for, but they're following every other step of Pritzker's mandate.
"I think we need to take a stance that, we're not going to enforce the Executive Order without getting the support we need to not put our local districts and local taxpayers in jeopardy," Ptacek said.
At the end of the letter, Ptacek did offer options on how the risk for school districts could be lessened.
- The Governor can issue an Executive Order clarifying the issue and clearly stating that the HCRCA does not apply to testing for the virus while the Emergency Proclamation is in place.
- The Illinois General Assembly can modify the HCRCA clarifying if it applies to staff testing for the virus.
- The ISBE can “promulgate emergency rules as necessary” and clearly state the repercussions school districts will face if they do not implement the Order. This will lessen the risk for school districts by providing clear evidence that school districts do not have any option other than to follow this mandate.
The state hasn't responded to Ptacek's letter yet, but he's hoping for a remedy by the end of the week.
We reached out to the governor's office a about how this law applies to the vaccine mandate, but we have not received a response at this time.
The Illinois State Board of Education gave us this statement about how they will handle districts who do not comply with the mandate:
ISBE will investigate all complaints of noncompliance. Any school or school district that is not complying is jeopardizing the health and safety of its students and educators and risks state recognition.