Illinois Adds Vaccine Exception to Mask and Social Distancing Rules

On May 13, 2021, the U.S. Centers for Disease Control and Prevention issued updated guidance advising that fully-vaccinated people no longer need to wear a mask or physical distance in any setting, except where required by law, a local business, or workplace guidance. As of Friday, May 14, 2021, the City of Chicago modified its public health rules to allow businesses to exclude fully-vaccinated people from capacity limitations, so long as they take steps to verify individuals’ vaccination status. On May 18, 2021, Illinois Governor J.B. Pritzker followed suit, issuing Executive Order 2021-10, which modifies prior executive orders requiring mask wearing in light of the new CDC guidance.

The following provides an overview of new executive order. Note that schools should continue to follow guidance from the Illinois State Board of Education and Illinois Department of Public Health, which has not yet been updated to exempt fully-vaccinated individuals from mask and social distancing requirements. All organizations should continue to closely monitor state and local guidance as it continues to evolve.

Covered Individuals and Entities

Executive Order 2021-10 applies to all individuals in the state of Illinois and to any “covered businesses” which include “any for-profit, non-profit, or educational entity, regardless of the nature of the service, the function it performs, or its corporate or entity structure.” While the order sets a floor, schools and other entities that may be subject to more stringent requirements should continue to follow the specific guidance applicable to their sector or industry. Businesses operating in the City of Chicago should continue to follow the detailed requirements and guidance issued by the City. Like previous orders, Executive Order 2021-10 includes exemptions for the free exercise of religion, emergency functions, and governmental functions. However, religious, emergency response, and other governmental organizations are advised to continue following applicable public health guidance when feasible.

Individual Mandates

Under prior executive orders, all individuals in Illinois over the age of 2 and who were medically able to do so were required to wear a face covering whenever present in any shared space outside of their own residence. Executive Order 2021-10 limits this requirement to individuals who are not “fully vaccinated.” An individual is “fully vaccinated” two weeks after receiving either a single-dose vaccine or the second dose of a 2-dose series.

Likewise, where prior orders required individuals to maintain at least six feet of distance from others outside of their household whenever reasonably possible, the new order limits that mandate to individuals who are not fully vaccinated.

The new order also encourages elderly and vulnerable people who are not fully vaccinated to take additional precautions including staying in their residences and minimizing in-person contact with others. Individuals who are not fully vaccinated are also advised to avoid gatherings with individuals outside of their own households, and to conduct activities outdoors when possible.

Requirements for Businesses, Nonprofits, and Other Organizations

Executive Order 2021-10 requires all businesses – broadly defined to include all for-profit, non-profit, and educational entities to take certain public health measures to protect their employees, customers, and others in physical contact with their operations, including:

• Ensuring that employees who are not fully vaccinated practice social distancing and wear face coverings when social distancing is not always possible;
• Ensuring that all spaces where employees may gather allow for social distancing;
• Ensuring that all visitors to their facility who are not fully vaccinated can practice social distancing, and encouraging those visitors to wear face coverings if maintaining six-foot distance is not possible at all times; and
• Ensuring that any return to work plans adhere to all applicable public health guidance.

When possible, covered entities are required to take proactive steps to promote safety, including:

• Whenever possible, designating six-foot distances by signage, tape, or other means;
• Having hand sanitizer and sanitizing products readily available for employees and customers;
• Implementing separate operating hours for elderly and vulnerable customers;
• Posting online whether a facility is open and how best to reach the facility and continue services by phone or remotely;
• Providing employees with face coverings and requiring that employees who are not fully vaccinated wear face coverings where maintaining a six-foot social distance is not possible at all times; and
• Providing other PPE in addition to face coverings when work circumstances require.

The order refers organizations to industry-specific guidance and toolkits available from the Department of Commerce and Economic Opportunity. The order also includes requirements for retail stores, manufacturers, employers in office buildings, indoor venues and meeting spaces, restaurants and bars, fitness and exercise gyms, personal services facilities, outdoor recreation, youth day camps, and youth sports, places of public amusement, and film productions. Organizations are also directed to follow guidance published by the Department of Commerce and Economic Opportunity and Department of Public Health.

Updating Policies and Practices to Reflect the New Order

Given the complex and evolving web of overlapping federal, state, and local guidance, organizations should strongly consider consulting with legal counsel to ensure that they are taking appropriate steps to protect their employees and other constituencies while avoiding potential legal risks. In particular, organizations should carefully consider their stance toward vaccination in light of the new guidance, including whether and how to implement exceptions to mask and social distancing rules for vaccinated individuals, how to verify vaccination status, and whether to mandate vaccination. Please do not hesitate to contact the authors of this article or your regular Franczek attorney for assistance with these issues.