September 21, 2021

Volume XI, Number 264


September 20, 2021

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Mask Up, Vax Up: Illinois Governor Issues Immediate Face Covering Mandate for All, COVID-19 Vaccine Mandate for Healthcare, School and State Workers and Students

On August 26, 2021, Illinois Governor J.B. Pritzker issued Executive Order 2021-20 (COVID-19 Executive Order No. 87) (the Order). The Order mandates that all individuals in Illinois who are at least two years old and who are medically able must wear face coverings indoors and in other specified settings. In addition, the Order mandates COVID-19 vaccination for certain professionals in healthcare and education, as well as for students and state employees, subject to certain exemptions which require regular COVID-19 testing. The Order is effective immediately.



The Order requires all individuals in Illinois two years old or older, and regardless of vaccination status, to wear a face covering over their nose and mouth when in an indoor public space, so long as they are able to medically tolerate a face covering. Where individuals are in close contact with others in an outdoor setting, the Order also strongly suggests (but does not mandate) wearing a face covering. Face coverings may be removed by (1) individuals actively eating or drinking (including in bars and restaurants), and (2) workers in workplaces when they can consistently maintain six feet of distance (such as when workers are in their office or cubicle space).

In addition to indoor public spaces, the Order confirms that individuals will continue to be required to wear a face covering in the following areas:

  • Public transportation and gathering hubs (planes, buses, trains, airports and bus or train stations);

  • Congregate facilities (such as correctional facilities and homeless shelters); and

  • Any healthcare setting.


What are the vaccination requirements and deadlines?

The Order requires all Health Care Workers, School Personnel, Higher Education Personnel and Higher Education Students (each as defined below) to (1) receive at least the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine within 10 days after issuance of the Order (i.e., by September 5, 2021), and (2) be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series.

Fully vaccinated” means that it is two weeks after receiving the second dose of a two-dose series of a COVID-19 vaccine authorized for emergency use (EUA), licensed or otherwise approved by the US Food and Drug Administration (FDA), or two weeks after receiving a single-dose COVID-19 vaccine authorized for emergency use, licensed or otherwise FDA-approved.

The Order also requires state employees at state-owned or operated congregate facilities to have both doses of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by no later than October 4, 2021, subject to bargaining.

Who is covered by the Order?

The Order generally applies to all individuals who meet the definition of Health Care Worker, School Personnel, Higher Education Personnel or Higher Education Student, and it also applies to certain state workers. Specifically:

  • Health Care Worker” is any individual who is (1) employed, contracted or volunteering at a healthcare facility (defined below); and (2) in close contact (fewer than six feet) with other persons for 15 or more minutes at least once per week on a regular basis as determined by the healthcare facility. A “Health Care Facility” is broadly defined to include any institution used to provide health services, medical treatment/nursing and rehab or preventative care. This includes the following: ambulatory surgical treatment centers, hospices, hospitals, physician offices, dental offices, free-standing emergency centers, urgent care facilities, birth centers, post-surgical recovery care facilities, end-stage renal disease facilities, long-term care facilities (including skilled and intermediate long-term care facilities licensed under the Nursing Home Care Act, the ID/DD Community Care Act or the MC/DD Act), Specialized Mental Health Rehabilitation Facilities, assisted living facilities, supportive living facilities, medical assistance facilities, mental health centers, outpatient facilities, public health centers, rehabilitation facilities, residential treatment facilities and adult day care centers.

  • School Personnel” means any person (1) employed, contracted or volunteering at a school or school district with student pre-kindergarten through 12th grade, and (2) in close contact (fewer than six feet) with other persons in the school for 15 or more minutes at least once per week on a regular basis as determined by the school. “School” refers to both private and public elementary or secondary school, including charter schools, serving students in pre-kindergarten through 12th grade, including state-operated residential schools.

  • Higher Education Personnel” means any person (1) employed, contracted or volunteering to provide services for an institution of higher education, or employed by an entity contracted to provide services for an institution of higher education, and (2) in close contact (fewer than six feet) with other persons in the school for 15 or more minutes at least once per week on a regular basis. An “Institution of Higher Education” is any publicly or privately operated university, college, community college, junior college, business, technical or vocational school or other educational institution offering degrees, programs or instruction beyond the secondary school level.

  • Higher Education Student” means any individual enrolled in credit-bearing or non-credit bearing coursework at an institution of higher education, either on campus or at an affiliated off-campus location. Importantly, the Order does not apply to students completing their coursework exclusively remotely.

  • In addition, the Order’s vaccine mandate applies to all state employees, as well as contractors or vendors, who work at “state-owned or operated congregate facility,” meaning congregate facilities operated by the Illinois Department of Veterans’ Affairs, the Illinois Department of Human Services, the Illinois Department of Corrections and the Illinois Department of Juvenile Justice.

Is anyone excluded from the Order?

Yes. The Order does not apply to:

  • Healthcare workers employed, contracted or volunteering for any state-owned or operated facility;

  • Students completing their coursework exclusively remotely; and

  • Individuals who are present at a covered Health Care Facility, School or Institution of Higher Education or affiliated off-campus location, or contractors or vendors who are present at state-owned or operated congregate facilities, if they are present for only a short period of time and their movements of close proximity to others is fleeting (e.g., contractors making deliveries and who remain physically distanced or individuals who enter a site briefly to pick up a shipment).

Though the Order does not state explicitly, given the exclusion of individuals who are present at covered facilities and locations for only short periods of time, fully remote employees appear to be excluded from the Order, as well.

What types of proof are acceptable to demonstrate COVID-19 vaccination status?

Individuals covered by the Order must provide proof of COVID-19 vaccination to their applicable facility or school. Proof of COVID-19 vaccination may be met by providing any of the following:

  • A Centers for Disease Control and Prevention (CDC) COVID-19 vaccination record card or photograph of the card;

  • Documentation of vaccination from a health care provider or electronic health record; or

  • State immunization records.

Are there any exemptions to the vaccine mandate?

Yes. Individuals are exempt from the Order’s requirement to be fully vaccinated against COVID-19 if they demonstrate that vaccination is medically contraindicated, including any individual who is entitled to accommodation under the Americans with Disabilities Act or other disability-related reasonable accommodation law. An individual is also exempt from vaccination if it would require the individual to violate or forego a sincerely held religious belief, practice or observance. (The Order is silent on any further procedures for furnishing proof of exempt status.)

The Order further provides that covered individuals who are not fully vaccinated against COVID-19 must be excluded from the premises unless they comply with the testing requirements set forth in the Order. It is unclear whether the testing option is available to anyone who chooses not to receive a COVID-19 vaccination, or whether it may only be available for those individuals with an approved medical or religious exemption or who are in process to become fully vaccinated at the time the Order becomes effective.

Are there additional safety requirements that apply to anyone who is not fully vaccinated?

Yes. Starting 10 days after the Order’s issuance, on September 5, 2021, any Health Care Worker, School Personnel, Higher Education Personnel or Higher Education Student who is not fully vaccinated must be excluded from the premises of the applicable Health Care Facility, School or Institution of Higher Education unless the individual is tested for COVID-19 at least weekly with a test that has EUA or is operating per the Laboratory Developed Test requirements by the CDC.

The Health Care Facility, School or Institution of Higher Education must either conduct the testing on site, or must obtain proof or confirmation from the individual of a negative test result obtained elsewhere. Though not required, the Illinois Department of Public Health recommends that PCR tests are used for this testing, if available.

State employees who are covered by the Order and who are exempt from vaccination pursuant to medical or religious reason will also be required to comply with additional testing requirements; however, the Order is silent on the details of such requirements as to state employees, possibly due to bargaining obligations.

Are Illinois employers permitted to implement their own vaccination requirements, even if the Order does not require them to do so? And can covered facilities implement more stringent requirements than the Order requires?

The Order explicitly states that nothing in the Order shall prohibit any entity from implementing its own vaccination and/or testing requirements for personnel, contractors, students or other visitors that exceed the requirements of the Order. Moreover, the Order encourages all entities to implement robust vaccination and testing programs to reduce the spread of COVID-19.

© 2021 McDermott Will & EmeryNational Law Review, Volume XI, Number 242

About this Author

Michelle S. Strowhiro

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