COVID-19 vaccine mandates continue expanding, including President Biden’s recent announcement to require all employers with at least 100 employees to likewise impose such requirements. Meanwhile, increasing voices are expressing concerns and are invoking religious, medical, and other objections to such blanket mandates. Are such objections legally valid? Should they, or must they, therefore be honored as exemptions to vaccine mandates? What about COVID-19 testing, and masking too?
As described below, federal law already provides for religious and disability-related exemptions. Additionally, at least under Illinois law, conscientious objections to COVID-19 vaccine and testing mandates raised by employees and others should be taken seriously, particularly, if they are made on the basis of religious beliefs. The Illinois Health Care Right of Conscience Act provides robust protections to all individuals – not just employees and including persons seeking admission to schools, events, and programs – with respect to medical treatments like COVID-19 vaccines as well as related medical testing procedures. Such protections include availability of a private right to bring legal action against employers and others with very substantial penalties for violations. While many states have right of conscience laws, they are typically much more limited, covering only medical professionals or only ethically questionable medical procedures. Amid swirling COVID dynamics, critical lessons abound for all.
Why Object to COVID-19 Mandates?
A wide variety of reasons may compel a person to refuse or request exemption from employer and other mandated COVID-19 vaccination and related policies. Some reasons are so fraught with intensely spiritual, moral, or other personal dilemmas that the law has afforded an individual’s invocation of such reasons a degree of protection, while others compel no special regard. The basis for objections may be spiritual, irreligious, or some mixture of spiritual and non-spiritual elements.
Anecdotally, our law firm has heard the following rationales, positions, or situations expressed through our nonprofit clients and individuals:
- Vaccination is a personal decision, informed by an individual assessment of individual risk factors;
- Distrust of vaccines, the institutions behind them, and/or the record time from conception to mass production of the available COVID-19 vaccines;
- Uncertain side effects or unknown long-term effects of vaccination with significant personal repercussions, e.g., reports suggesting heightened rates of infertility, miscarriage, myocarditis, or other heart issues;[1]
- Objection to vaccines that were derived from aborted fetal cell issues;
- Objection arising from a person’s own health problems, which could be adversely affected by getting vaccinated (e.g., immunocompromised system, such as from cancer or other serious disease);
- A conclusion that COVID-19 is no longer a serious health threat sufficient to outweigh the uncertainties as to vaccine safety;
- Existence of antibodies and natural immunities, after a prior COVID-19 infection such that vaccination appears unwarranted;
- Limited access to vaccine sites or no access without loss of income or even employment occasioned by the need for time off work to obtain the vaccine and recover from any side effects.
These objections have been expressed with respect to mandatory COVID-19 testing and face covering requirements as well.
Currently Available Employment Protections – On the Basis of Religion and Disability
Within the employment context, objections based on an employee’s religious beliefs or a disability warrant careful consideration and often a reasonable accommodation. A failure to accommodate or adverse employment action, such as job loss or demotion, could give rise to an individual cause of action against an employer under the federal Americans with Disabilities Act, Title VII of the Civil Rights Act, and other state and local workplace anti-discrimination laws.
The federal Equal Employment Opportunity Commission (EEOC), which handles federal religious, disability, and other discrimination claims, issued Q&A guidance on May 28, 2021. In doing so, the EEOC recognized the viability of potential exemptions from vaccine mandates, stating, “The federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, subject to the reasonable accommodation provision of Title VII and the ADA and other EEO considerations.” An employee with a disability who objects to vaccination based on such disability is entitled to great consideration and may be entitled to a reasonable accommodation. For more information about reasonable accommodations to COVID-19 safety protocols, see our blog here.
Earlier this year, the EEOC also issued guidance addressing employees’ religious liberty rights through its “Compliance Manual on Religious Discrimination.” Among other things, the Manual defines religion itself, addresses important employment exemptions, and explains key concepts like harassment and required “reasonable accommodation.” Applying judicial precedent, the EEOC’s comprehensive guidance addresses the often highly fact-specific intersection between employees’ and employers’ rights and obligations with respect to religious matters. Workplace-related religious issues involve inherent tensions, as is evidenced by the upswell of employee objections to COVID-19 vaccines and related protocols – even to the point of getting fired. For more information about the EEOC’s Compliance Manual and related religious liberty implications, see our blog here.
Enter Rights of Conscience Objections – Are They Legally Valid in COVID Times?
Right of conscience objections involve additional considerations and are not limited to the employment context (e.g., a person seeks admission to a school, event, or program). Right of conscience objections involve concerns about mandatory actions, treatments, or other measures that would violate an individual’s religious or other beliefs. As a general matter, such objections merit serious consideration and respect for the personal reasons underlying the objection. Whether such personal objections are entitled to deference legally is a separate matter.
An individual’s right of “conscience as a paramount right” has historically been protected and respected in numerous unrelated contexts.[2] Moreover, the individual right of conscience is not generally understood to shrink or lose significance when placed within a broader political, social, or cultural narrative. The right of conscience is a personal right and not subject to the approval of the collective conscience or greater community. Thus, even strong support for COVID-19 vaccinations within the workplace, by the larger population, or the government would not necessarily deprive vaccine resisters from the right to raise a conscience-based objection to vaccination or related discriminatory treatment, to the extent that such person’s right of conscience is protected by law.
Prior Vaccine Mandates vs. Conscience-Based Objections
Philosophical or conscientious objections to vaccination are nothing new. Indeed, the term “conscientious objector” originally referred to people who refused vaccination. The United Kingdom Vaccination Act of 1853 required the vaccination of all infants and was met with sharp resistance by many parents. In 1898, a conscience clause was added to the act, allowing parents to apply for exemption. This exemption was the precursor to “philosophical” exemptions in the United States. Several states have codified allowances for philosophical objections with varying application, e.g., permitting parents to send unvaccinated children to public schools for reasons that are not medical or religious, but philosophical.
In Jacobsen v. Massachusetts, the U.S. Supreme Court considered whether a local board of health could compel vaccination against smallpox during a smallpox epidemic under a state statute authorizing such authority “when necessary for public health or safety.” 197 U.S. 11 (1905). There, the local board’s ordinance required all adults who were at least 21 years old to be vaccinated and imposed a $5.00 criminal fine for noncompliance. Thus, adults could choose not to be vaccinated, with the only adverse consequence being the possibility of a fine. The Court upheld the ordinance, reasoning that the state legislature possessed sufficient “police powers” to pass legislation regarding public health – particularly for a well-established effective vaccine involving a long-problematic disease. In doing so, the Court recognized that individual liberty is not an absolute constitutional right and “may at times, under the pressure of greater dangers, be subjected to restraint.” In short, the Court concluded that public safety from smallpox justified legislatively imposed reasonable regulations. Many have argued that Jacobsen is directly controlling for COVID-19 vaccine and other mandates, while others have contended that sufficient differences exist to make the case inapplicable – or at least narrower in application.
Illinois Health Care Right of Conscience Act – To Be Taken Seriously!
The Illinois Health Care Right of Conscience Act, 745 ILCS 70/1 et seq., broadly protects individuals from discrimination if they cannot in good conscience accept or perform certain health care or treatment. Indeed, Section 5 of the Illinois Act makes it illegal “for any person, public or private institution, or public official to discriminate against any person in any manner…because of such person's conscientious refusal to receive, obtain, accept, perform, assist, counsel, suggest, recommend, refer or participate in any way in any particular form of health care services contrary to his or her conscience.”[3]
Section 3(a) of the Illinois Act defines the term “health care” quite broadly to mean any phase of patient care, “including but not limited to, testing; diagnosis; prognosis; ancillary research; instructions;…medication; surgery or other care or treatment rendered by a physician or physicians, nurses, paraprofessionals or health care facility, intended for the physical, emotional, and mental well-being of persons.” This definition thus encompasses vaccines and testing, and arguably medically-based face covering as a type of health care prevention.
Section 3(e) of the Illinois Act defines the word “conscience” to mean “a sincerely held set of moral convictions arising from belief in and relation to God, or which, though not so derived, arises from a place in the life of its possessor parallel to that filled by God among adherents to religious faiths.” The Illinois version of a legally protectible right of conscience is thus generally based on religious belief. One’s objecting convictions must be “sincerely held,” expressed in moral terms – e.g., it is wrong to do “X” because of one’s religious beliefs.
The Illinois Act further confers strong legal rights for adversely affected individuals. If successful in their claims, they are entitled to triple actual damages, pain and suffering, and recovery of attorneys’ fees. A minimum recovery of $2,500 per incident is also available, in the absence of actual damages.[4]
But What About Executive Orders and Other Compulsory Mandates?
The Illinois individual cause of action is available notwithstanding Illinois Governor Pritzker’s executive order mandates and other regulatory health care directives. As the Illinois Court of Appeals recognized in the 2020 case of Rojas v. Martell, an employee’s rights of conscience under the Illinois Act may not be eviscerated by a public health directive mandating a particular form of health care services.[5] In doing so, the Illinois Court relied on the 2007 Illinois appellate case of Morr-Fitz, Inc. v. Blagojevich, which recognized pharmacists’ and pharmacies’ superior rights of conscience under the Illinois Act to an Illinois administrative rule (issued by an executive branch agency) regarding dispensing of Plan B abortifacients.
The Illinois Act and these court cases are firmly grounded in recognized constitutional rights. As the U.S. Supreme Court instructed in the key case of Washington v. Glucksberg, the Fourteenth Amendment’s Due Process clause “provides heightened protection against government interference with certain fundamental rights and liberty interests” such as bodily integrity and even the “right to refuse unwanted lifesaving medical treatment.”[6] The Due Process Clause “forbids the government to infringe…‘fundamental’ liberty interests at all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.”[7] Rejecting assisted suicide itself as a constitutional right, the Court nevertheless took note of “the common-law rule that forced medication was a battery,” as well as “the long legal tradition protecting the decision to refuse unwanted medical treatment.”[8]
Of note, at least under the Rojas decision, no “balancing” test is involved to weigh the relative burdens on a person’s personal interests against the government’s own compelling interests. Such balancing of competing interests may be applicable under Title VII, other discrimination laws, the federal Religious Freedom Restoration Act, and its state counterparts, but not to Illinois rights of conscience claims.[9]
On the other hand, transferring an objecting employee to a different position (or making similar accommodations for others) may not necessarily violate the Illinois Act.[10] This option may become a reality, as employers seek to address safety concerns for all persons involved.[11]
The Act and the legal cases interpreting it demonstrate that an employee or other person who invokes a conscience-based objection to a mandatory COVID-19 vaccination policy should be protected from discrimination, including termination or loss of promotion or other privileges, as enumerated in the statute. Moreover, a person subjected to such discrimination is authorized to bring a private lawsuit for damages. Such legal protections should give Illinois employers and others serious pause when considering whether to issue a mandatory vaccination policy.
Other State Right of Conscience Protections
Other state right of conscience statutes afford far less legal protections. Many laws preserve only the right of conscience for medical practitioners, health care institutions, or healthcare providers to refuse to provide abortions. Others go so far as to permit medical practitioners to refuse participation in or payment for medical procedures or prescriptions for medication to which the practitioner objects on the basis of conscience. These narrower right of conscience laws would have no application in the employment context and certainly not exempt any employee from mandatory vaccination (or other COVID-related mandates) or require an employer to honor a conscience-based objection to vaccination.
Even so, individuals may raise a claim under the federal Religious Freedom Restoration Act (“RFRA”), if government action is involved or under state counterparts. The success of RFRA claims in the COVID context is not known, as claims have yet to be tested within the judicial system.[12]
Asserting an Objection
What should an employee or other individual do who seeks to assert an objection under the Illinois Act? Generally speaking, it may be important to document such request through a written communication that sets forth the person’s specific objection (i.e., to vaccines and/or testing), the basis for such person’s objection (e.g., sincerely held religious beliefs), how such beliefs or other basis correlates with the stated objection, and any other related information that could be helpful for the recipient’s evaluation (e.g., information about the applicable Illinois Act and how it applies here). A letter from a conscientious objector’s clergy member or religious organization is not legally necessary, although it may be helpful as a practical matter.
What should an Illinois employer or other institution do in response to such a request? In brief, honor the request. The recipient may deem it important to evaluate whether or not such objection is based on a sincerely held religious belief, but that may be a perilous road to take as a court may not agree with the recipient’s conclusion. Additionally, if the request contains a further basis for the objection, such as a disabling medical condition or an employment-related religious accommodation, such matters should further be evaluated according to applicable ADA or Title VII legal framework discussed above. In other words, an objection may be couched as a “right of conscience” objection under the Illinois Act but warrant additional consideration under other antidiscrimination laws.
Rights of Conscience Challenges – Now and Ahead
Employers and other institutions certainly face many challenges in determining whether, and to what extent, to impose COVID-19 vaccination and other mandates, not to mention how best to respond to external mandates and related pressures such as those imposed by government directives. Correspondingly, conscientious objectors may face intense personal dilemmas about whether to voice their objections, whether to pursue a lawsuit, and if they can accept the consequences that may follow resistance, such as job loss, refused services, or other opposition. These challenges are taking place right now, and they likely will only intensify in the future.
Those in Illinois should understand and abide by the stringent protections available under the Illinois Act - even if such protections may not be currently widely known or understood. Those in other states may face more uncertainty, as courts grapple with rights of conscience and related claims through ground-breaking litigation. Through it all, sensitivity to both the deeply personal issues and applicable legal aspects remains paramount, as part of demonstrating care for others, respect for individual autonomy, and promotion of health and safety.
[1] Notably, as of August 27, 2021, 650,077 post-vaccination adverse events have been reported through the Vaccine Adverse Events Reporting System (“VAERS”), a national warning system intended to detect possible safety problems with U.S.-licensed vaccines. See 650,000+ Injuries Reported After COVID Vaccines; and Vaccine Adverse Event Reporting System. The system is co-sponsored by the Centers for Disease Control and Prevention, the Food and Drug Administration, and agencies of the U.S. Department of Health and Human Services.
[2] Kevin H. Theriot & Ken Connelly, Free to Do No Harm: Conscience Protections for Healthcare Professionals, Ariz. St. L. J. 549, 561 & n. 81 (recognizing the right of conscience in the context of military conscription, capital punishment, assisted suicide, and abortion).
[3] Section 7 of the Illinois Act further makes it illegal “for any public or private employer, entity, agency, institution, official or person,…to place any reference in its application form concerning, to orally question about, to impose any burdens in terms or conditions of employment on, or to otherwise discriminate against, any applicant, in terms of employment, admission to or participation in any programs for which the applicant is eligible, or to discriminate in relation thereto, in any other manner, on account of the applicant’s refusal to receive, obtain, accept, perform, counsel, suggest, recommend, refer, assist or participate in any way in any forms of health care services contrary to his or her conscience.
[4] More specifically, Section 12 provides:
Any person, association, corporation, entity or health care facility injured by any public or private person, association, agency, entity or corporation by reason of any action prohibited by this Act may commence a suit therefor, and shall recover threefold the actual damages, including pain and suffering, sustained by such person, association, corporation, entity or health care facility, the costs of the suit and reasonable attorney’s fees; but in no case shall recovery be less than $2,500 for each violation in addition to costs of the suit and reasonable attorney’s fees. These damage remedies shall be cumulative, and not exclusive of other remedies afforded under any other state or federal law.
745 ILCS 70/12 (emphasis added regarding potential liability).
[5] See Rojas v. Martell, 161 N.E.3d 336, 346, 2020 Ill. App. LEXIS 141 (Ill. Ct. App. 2d Dist. 2020).
[6] 521 U.S. 702, 719-720 (1997) (numerous citations omitted).
[7] Id. at 302 (quoting Reno v. Flores, 507 U. S. 292, 301-302 (1993)).
[8] Id. at 725.
[9] See Rojas, 161 N.E.3d at 349-350.
[10] Id. at 350-351 ("’If an employee contends that a job duty violates their [sic ] right of conscience under the [Right of Conscience Act], does a transfer of that employee to a job which does not include the objected-to duty necessarily violate [section 5 of the Right of Conscience Act]?’" Pursuant to well settled principles of statutory construction, we are compelled to hold that the answer is no.”).
[11] See, e.g., NYC Must Give Teachers With Medical And Religion Exemptions Non-Classroom Work, Arbitrator Finds.
[12] For an example of recent RFRA application to COVID-related restrictions, see our blog D.C. Church Wins Religious Liberty Claim for In-Person, Outdoor Worship.
