The operators of NorthShore University Health System have come under legal threat for allegedly denying workers a religious exemption from the hospital system’s mandates requiring workers to either get the COVID vaccine or get fired.
And the lawsuit threats make the operator of several north suburban hospitals and health care facilities just the latest in a growing number of employers – both public and private – targeted under the Illinois Health Care Right of Conscience Act, a previously little known law that in recent weeks has driven a surge of actual and threatened religious discrimination lawsuits.
On Oct. 1, Liberty Counsel, a conservative religious liberty advocacy and litigation nonprofit organization, announced they had sent a letter to NorthShore, threatening to sue if NorthShore does not retract its denial of exemptions for workers claiming religious objections to being threatened with termination if they did not receive a COVID-19 vaccine.
Carl Draper
| Feldman Wasser
Liberty Counsel said the letter was sent on behalf of 14 employees. Those workers claim NorthShore initially approved their requests for religious exemptions from the COVID vaccine mandate, but then reversed their decisions in mid-September, and denied the exemptions.
“Those denials were either without explanation or purportedly because the requests failed to meet some phantom “evidence-based criteria” that NorthShore never provided its employees in advance,” Liberty Counsel attorney Horatio G. Mihet wrote in the letter.
The letter particularly notes NorthShore has revised its religious exemption request form, explicitly warning it would deny any requests for religious exemption based on the belief that the vaccines are linked to the use of aborted fetal cell lines.
“NorthShore falsely asserts or implies in that form that the COVID-19 vaccines have no link to aborted fetal cell lines, and also unlawfully purports to judge as invalid the religious beliefs of employees who object to the vaccines’ indisputable connection to aborted fetal cell lines,” Liberty Counsel wrote. “It is not up to NorthShore to coerce an employee to not apply for religious accommodation or to argue either theologically or scientifically against their sincerely held religious beliefs.”
In threatening to sue, Liberty Counsel points to protections they assert apply to workers under Illinois’ Health Care Right of Conscience Act.
In recent weeks, the provisions of that law have emerged as the next legal flashpoint in the running court battles being waged restrictions and requirements imposed by Illinois Gov. JB Pritzker, other government agencies, and a growing number of private employers and businesses, in the name of fighting COVID-19.
In cases filed downstate, for instance, attorney Tom Devore particularly has found success using the law to bring lawsuits seeking to blunt the ability of hospitals and other employers from enforcing vaccine mandates.
In downstate Quincy, for instance, an Adams County judge slapped on a temporary restraining order on Sept. 30 against the Quincy Physicians and Surgeons Clinic and Blessing Corporate Services, blocking those health care organizations, for now, from firing health care workers who have refused to comply with the company’s COVID vaccine mandates.
That case, and others like it, rely on the Right of Conscience Act’s language prohibiting “any person, public or private institution, or public official” from discriminating “against any person in any manner … because of such person's conscientious refusal to receive, obtain, accept or participate in any way in any particular form of health care services contrary to his or her conscience.”
The law also specifically grants people whose conscience rights may have been violated to sue their employers, whether private or public, potentially handing them a big bill, worth triple damages.
OPEN TO INTERPRETATION?
Rockford religious liberty attorney Noel Sterett, with the firm of Dalton+Tomich, said lawsuits brought under the Right of Conscience Act will present Illinois courts with an interesting legal question:
Whether the anti-discrimination provisions within the law can be read to apply to all Illinoisans, in any profession and in any job, or whether those provisions are limited to those actually working in health care.
“It will be a question of whether the courts will rely on the general purpose behind the law, or will rely solely on how it’s written,” said Sterett. “And that interpretation could vary from judge to judge.”
Sterett has used the Right of Conscience Act for years to help conservative religious believers in health care in Illinois press claims against employers who allegedly violated their religious rights.
Sterett, for instance, led the litigation effort on behalf of Sandra Rojas, a pediatric nurse who lost her job at the Winnebago County Health Clinic in Rockford in 2016 after refusing on religious grounds to either provide women with birth control she believed caused abortions or to refer those women elsewhere to obtain abortions.
That case, based in large part on the anti-discrimination provisions within the Right of Conscience Act, resulted in an appeal to the Illinois Second District Appellate Court.
The decision in that case is considered by many legal observers to be the seminal appellate decision to date on the scope and breadth of the individual conscience protections within the law.
In that decision, docketed as Rojas v Martell, the appeals panel determined a balancing test applied by courts to a range of other discrimination claims - in which judges weigh the rights of the religious adherent against the burden a religious exemption would place on the needs of the employer organization - did not apply to claims under the Right of Conscience Act.
That meant employers cannot defeat employment discrimination claims under the Right of Conscience Act simply by claiming they could not accommodate religious believers’ exemption requests.
Employment and administrative law attorney Carl Draper, of the Springfield firm of Feldman Wasser, said the Rojas decision could promise trouble for employers in Illinois who attempt to deny religious exemption requests.
Draper and Sterett both noted that, when the Right of Conscience Act was passed in 1998, lawmakers intended for the law to protect health care workers, such as nurses, doctors and pharmacists, from religious employment discrimination, should those health care professionals object on religious grounds to performing or facilitating certain health care procedures, particularly abortions.
However, under the Rojas decision, Draper said, it has become clear the scope of the law, as written, “vastly exceeded the political question of that day,” and could be read to prevent state and local governments, and private employers, from forcing anyone who objects on religious grounds to receive any vaccine, or perhaps even be forced to undergo testing for a disease, like COVID.
To this point, Draper noted the law has only been applied to those working in the health care setting. But, he said, people in other professions throughout Illinois have begun pointing to the law, as they seek similar guarantees to religious exemption from vaccine and testing mandates.
J. Matthew Dudley, the president of the Illinois Trial Lawyers Association, and a personal injury lawyer, of Dudley & Lake, of Libertyville, acknowledged the threat for lawsuits under the Right of Conscience Act.
However, he said he did not look for plaintiffs’ lawyers to rush in to take up legal challenges against vaccine and testing mandates.
He noted he personally would decline to take on a lawsuit against an employer seeking to use the Right of Conscience Act to defeat a COVID vaccine mandate.
Dudley said be believes the Right of Conscience Act should be read using the original legislative intent:
That the law’s protections only should apply to health care professionals.
Applying the Right of Conscience Act’s protections to those working outside of health care would be “a novel interpretation of this statute,” Dudley said, which would likely find its way into Illinois’ appellate courts, and possibly to the Illinois Supreme Court, he added.
“This is not a short-term legal issue that will just go away,” said Dudley. “At a minimum, there will be a lot of unique and new litigation that is going to come out of this conflict.”
Other plaintiffs’ lawyers declined to even discuss the topic with The Cook County Record.
Draper and Sterett said the question on who the law ultimately protects could be a close one. And it could also come down on the side of those invoking the law’s protections, given the law’s broad language.
“I’ll be just as interested as anyone else to see which side of the interpretation debate that the courts ultimately come down on,” said Sterett.
Even if the courts ultimately decide the law applies only to health care workers, Draper noted the Right of Conscience Act could still be read to trump some of the provisions of the Illinois Emergency Management Agency Act, the state law Pritzker has relied upon since March 2020 to issue a host of emergency executive orders and societal and economic restrictions, to address the COVID-19 pandemic.
Lawyers like Devore, who, to this point have struggled to blunt Pritzker’s powers, may have found in the Right of Conscience Act a “statutory hook” to mount a range of new challenges.
Draper and Dudley said such possibilities could ultimately prompt the Democratic majority in the Illinois General Assembly in Springfield to move to rewrite the Right of Conscience Act, perhaps to specifically deny conscience protections to those seeking to use the law to defeat vaccine mandates, such as those pushed by Pritzker and other prominent Democratic executives, like President Joe Biden.
If the legislature took such action, Draper noted it would mark the first time in a year and a half, since the onset of the COVID-19 pandemic, that Democratic lawmakers would have taken any action to clarify the extent of the reach of COVID-related mandates in the state.
“It’s always unpredictable what could happen in the state house,” said Draper. “But the debate on this would likely be loud and furious, on both sides.”
For now, employers seeking to limit religious exemptions should not look for the threat of legal actions under the Right of Conscience Act to dissipate.
Such actions could leave employers stuck between the will of the state and federal governments on one side, and, on the other, the threat of potentially costly lawsuits from desperate employees under the Right of Conscience Act.
As for NorthShore, Liberty Counsel has given them until Oct. 7 to correct what they see as NorthShore’s illegal actions, or they will “proceed directly with litigation to vindicate the legal rights of … NorthShore employees, without further warning.”