By PETER HANCOCK
Capitol News Illinois
phancock@capitolnewsillinois.com

SPRINGFIELD – A state appellate court ruled this week that it will not block enforcement of the Pritzker administration’s mandate that certain categories of public employees either be vaccinated against COVID-19 or undergo regular testing.

The 2-1 ruling by the 4th District Court of Appeals upheld a Sangamon County judge’s decision on April 1 not to issue a temporary restraining order blocking enforcement of the policy.

The decision involved three consolidated cases in which public employees are seeking to overturn the mandate. The cases include suits against Gov. JB Pritzker, various state agencies, the Pekin Fire Department and the Deland-Weldon school district.

Pritzker first issued a vaccine mandate on Aug. 26, 2021, through an executive order that applied to health care workers, school employees, higher education personnel and students, and state employees who work in congregate facilities. The order also authorized other entities, both public and private, to enact their own vaccination and testing requirements.

The employees sued to block enforcement of the order citing the state’s Health Care Right of Conscience Act which, among other things, makes it illegal to discriminate against anyone for refusing to receive any particular form of health care that they find contrary to their conscience.

That law was originally enacted to shield health care workers from liability for refusing to perform or assist in abortions. During last year’s fall veto session, however, lawmakers passed an amendment to that law making a specific exception for health care measures that are intended to prevent the spread of COVID-19.

That provision does not officially go into effect until June 1. But lawmakers inserted language in the measure stating the section “is a declaration of existing law” rather than a new enactment.

In other words, the General Assembly said it was only clarifying something that was ambiguous in an existing law, which in this case involved the word “discriminate.”

The Sangamon County circuit court cited that law in denying the plaintiffs’ request for a temporary restraining order, saying that even though it hasn’t taken effect yet, it can still be used as an aid in understanding the original statute.

But the plaintiffs appealed, noting that the new law has not yet gone into effect while also arguing that even though the amendment claims to be a declaration of existing law, the legislature cannot retroactively change the meaning of an otherwise unambiguous statute.

In their appeal, the plaintiffs cited a 2020 decision from the 2nd District Court of Appeals involving the same statute that said there was nothing ambiguous about the word “discriminate.”

“To the contrary, the ordinary meaning of the word is set forth in its dictionary definition,” the 2nd District court wrote.

That case involved a nurse in a public health clinic who claimed religious objections to providing family planning services or referring patients for abortions.

In its ruling Wednesday, however, the 4th District appellate court said that simply because a word has a dictionary definition does not make its meaning within a statute unambiguous. In this case, the court said, it would only be discriminatory if an employer punished workers who refused to be vaccinated or tested as a matter of conscience but did not punish those who refused for other reasons.

The vaccine and testing requirements, the court wrote, could actually be seen as merit-based policies because those who are vaccinated or tested are less likely to spread COVID-19 in the workplace.

The plaintiffs also challenged the vaccine and testing mandates under the Illinois Department of Public Health Act, which gives that agency “supreme authority in matters of quarantine and isolation.”

But the appellate court rejected that argument as well, saying that the employers in the three cases had not quarantined or isolated anyone, but had instead only threatened loss of employment.

“To be fired is not to be quarantined or isolated from the community at large,” the majority wrote.

The opinion was written by Justice Peter Cavanagh, with Justice James Knecht concurring.

Justice Robert Steigmann wrote a dissenting opinion. He argued that the word “discriminate” has a clear and understandable meaning and that the legislature included in the statute numerous examples of the kinds of discrimination that are prohibited.

He also argued that the 2021 amendment to the Health Care Right of Conscious Act could be used as an “interpretive aid” in understanding the original statute because he found nothing unambiguous about the original law.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.