School raises liability concerns over ‘realistic’ vaccine mandate challenges

[September 29, 2021]  By Greg Bishop

(The Center Square) – The consequences of Gov. J.B. Pritzker’s COVID-19 vaccine mandate or weekly testing requirement for school employees is playing out differently across the state.

Some are looking for possible legal liability to be on the state, not on local taxpayers. Others are complying and excluding staff.

A spokesperson for Springfield District 186 said the district doesn't have the legal authority to violate the governor’s directive and the district is excluding staff who don’t provide their vaccine status or submit to weekly COVID-19 tests.

“While we understand that some school personnel in Illinois believe they have a right not to test under [the Health Care Right of Conscience Act], we do not believe we have the legal authority to violate any directive from the Governor, ISBE or IDPH,” Springfield District 186 spokesperson Bree Hankins said. “Therefore, all unvaccinated school personnel or those who wish to not disclose their status in District 186 will be required to test.”

There are at least two staff members at Springfield schools on unpaid leave because of noncompliance.

Jacksonville public schools Superintendent Steve Ptacek said the district is not enforcing the mandate because of possible challenges through the HCRCA.

“We do have a realistic expectation of there being a lawsuit if there were to be an exclusion,” Ptacek told WMAY.

He said the district implemented COVID-19 mitigations, such as mandatory masks, even before the governor ordered it. But, he said he’s been advised by legal counsel that Pritzker’s vaccine mandate may be challenged because of the state’s HCRCA, which was enacted in 1998.

“A claim under HCRCA could result in each individual claim being up to half-a-million dollars in penalties and definitely a couple hundred-thousand dollars in attorneys fees even if you win,” Ptacek said.

Ptacek said the district can’t risk taxpayer's resources because a few staff members that have raised the HCRCA argument. He said because of that, and the lack of clarity from the governor, the district isn’t excluding any staff for not complying at this time.
 

He wrote the governor and the Illinois State Board of Education on Friday with suggestions on how to clear up the gray area, but he had yet to hear back by Tuesday morning.

One suggestion was for the governor to make clear any legal liability is on the governor, not on local taxpayers, or the legislature can change the HCRCA. A third option is most probable, he said.

“If we were to get one of those probation letters [from ISBE for noncompliance of executive orders] then we would immediately write to them how we will comply, but our attorney feels that that is evidence that it is not the school district’s decision, it is the state’s decision, which puts us in a more defensible position,” Ptacek said.

Pritzker’s office and the ISBE did not return messages seeking comment.