Illinois General Assembly Says Religious Objection Law Does Not Apply to COVID-19 Safety

By Erin Walsh, Shelli Anderson, William Pokorny and Michael Warner - Franczek P.C.

November 1, 2021

On Thursday night, October 28, 2021, the Illinois General Assembly passed House Floor Amendment 3 to Senate Bill 1169, which amends the Health Care Right to Conscience Act (HCRCA) to allow employers the right to “take any measure or impose any requirement…intended to prevent contraction or transmission of COVID-19.”

The HCRCA has recently gained notoriety as a way for individuals to avoid complying with employer-mandated vaccine and testing policies and other COVID-19 safety measures. The HCRCA was enacted primarily to ensure that health care providers would not be compelled to participate in providing health care services that they find morally objectionable, such as performing abortions or dispensing contraceptives. However, the HCRCA is broadly worded, prohibiting any sort of discrimination against a person “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.” 745 ILCS 70/5

The HCRCA defines “conscience” entitled to protection under the statute as “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.” 745 ILCS 70/3(e).

While these protections are similar in some ways to Title VII in terms of requiring employers to accommodate employee religious beliefs, there is one key difference: unlike Title VII, the HCRCA has no “undue hardship” exemption, even if granting an exception would create a significant risk to health and safety or prevent the employer from complying with federal or state regulations.

The amendment clarifies the legislative intent behind the HCRCA, specifically that it is not intended to prevent an employer from taking measures or imposing requirements intended to prevent contraction or transmission of COVID-19. Once the Governor signs the legislation, employers will be on stronger ground to enforce COVID-19 vaccination and testing mandates without fear of violating the HCRCA.

One potential wrinkle in the legislation is its effective date. Because the bill did not pass by a three-fifths majority, Illinois law provides that the legislation cannot take effect until June 1, 2022. That may come as cold comfort to employers and others seeking to combat the COVID-19 virus now. However, the new provision expressly states that it is a “declaration of existing law” and “not [to] be construed as a new enactment.” This language will lend support to the argument that the HCRCA does not currently apply to COVID-19 safety measures.  Individuals seeking exemption from such measures under the HCRCA may continue to dispute that position. Ultimately, these disputes may need to be decided by the courts. However, if the law takes effect in June 2022 as scheduled, any litigation still pending at that time would be governed by the new amendment, and presumably any claims under the HCRCA related to COVID-19 mitigation measures would be barred.