Lenz v. Advocate Health & Hospitals Corp.

2023 IL App (1st) 230740

• Court: Appellate Court of Illinois
• Decided: October 12, 2023
• Docket: 1-23-0740
• Status: Published

Opinion

2023 IL App (1st) 230740

FOURTH DIVISION Opinion filed: October 12, 2023

No. 1-23-0740

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

LAURA LENZ, ) Appeal from the ) Circuit Court of Plaintiff-Appellant, ) Cook County ) ) v. ) No. 2022 L 1508 ) ) ADVOCATE HEALTH AND HOSPITALS CORP. ) d/b/a ADVOCATE CHRIST MEDICAL CENTER, ) Honorable ) John J. Curry, Jr., Defendant-Appellee. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Martin concurred in the judgment and opinion.

OPINION

¶1 The plaintiff, Laura Lenz, appeals from the circuit court’s order dismissing her complaint

for unlawful discrimination against the defendant, Advocate Health and Hospital Corp. d/b/a

Advocate Christ Medical Center (Advocate). For the reasons which follow, we affirm the

judgment of the circuit court. No. 1-23-0740

¶2 On February 15, 2022, the plaintiff filed a complaint in the instant action, charging that

Advocate discriminated against her in violated section 5 of the Illinois Health Care Right of

Conscience Act (Act) (745 ILCS 70/5 (West 2020)). Specifically, the complaint alleged the

following. On or about August 4, 2021, Advocate released its Immunization Policy which required

the plaintiff and other employees to either provide proof of completion of the COVID-19

immunization series by October 15, 2021, or receive an approved religious exemption. On August

10, 2021, the plaintiff submitted a request for a religious exemption from Advocate’s

immunization requirements. On September 3, 2021, Advocate denied the plaintiff’s request,

claiming that it was made “based on misinformation.” On September 7, 2021, the plaintiff filed

an appeal from the denial which Advocate denied stating that the request was “missing sincere

religious belief.” On October 15, 2021, Advocate fired the plaintiff from her position as a nurse.

She alleged that she was fired in violation of section 5 of the Act for refusing to receive health care

services contrary to her conscientious convictions.

¶3 On April 15, 2022, Advocate filed a combined motion pursuant to section 2-619.1 of the

Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)), seeking dismissal of the

plaintiff’s complaint. Pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2020)),

Advocate argued that the plaintiff’s complaint failed to state a claim under the Act. Pursuant to

section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)), Advocate alleged both that the Act

provides no protection for healthcare employees who refuse to comply with their employer’s

mandate to receive vaccination against COVID-19, and that the plaintiff’s claim under the Act is

preempted by federal law. During the course of briefing the motion before the trial court, Advocate

filed the declarations of Dr. Allison Arwady, Commissioner of Public Health of the City of

Chicago; Dr. Arti Barnes, Medical Director and Chief Medical Officer of the Illinois Department

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of Health; and Dr. Robert Citronberg, Advocate’s Executive Medical Director, Infectious Diseases

and Prevention.

¶4 On October 20, 2022, the circuit court denied Advocate’s motion to dismiss. In so ruling,

the circuit court did not address Advocate’s federal preemption argument other than to deny that

portion of Advocate’s motion without prejudice.

¶5 On November 10, 2022, Advocate filed its answer and affirmative defenses. In its answer,

Advocate admitted that it had an Immunization Policy that required the plaintiff and other

employees to provide proof of completion of the COVID-19 immunization series by October 15,

2021, admitted that the plaintiff’s employment ended on October 15, 2021, and denied that its

actions were unlawful. For its affirmative defenses, Advocate argued that the plaintiff’s claim is

barred both by section 13.5 of the Act (745 ILCS 70/13.5 (West Supp. 2021)) and by federal

preemption.

¶6 On February 1, 2023, Advocate filed a motion seeking reconsideration of the denial of its

motion to dismiss. In so moving, it relied upon the November 14, 2022, opinion filed in Krewionek

v. McKnight, 2022 IL App (2d) 220078, which held that the enactment of section 13.5 of the Act

removes employer requirements intended to prevent contraction or transmission of COVID-19

from the protection afforded under the Act. Id. ¶ 38.

¶7 On March 30, 2023, the circuit granted Advocate’s motion to reconsider, vacated its order

of October 20, 2022, which denied Advocate’s motion to dismiss, and dismissed the plaintiff’s

complaint pursuant to section 2-619(a)(9). This appeal followed.

¶8 In urging reversal of the circuit court’s order dismissing her complaint, the plaintiff argues,

inter alia, that the Act forbids her firing for adhering to her religious opposition to vaccines. She

asserts that section 5 of the Act makes it unlawful for any institution to discriminate against a

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person in any manner because of that person’s conscience refusal to receive health care services

contrary to her conscience, and that section 12 of the Act (745 ILCS 70/12 (West 2020)) provides

for a private right of action against any entity or health care facility “by reason of any action

prohibited by *** [the] Act.” Advocate argues that section 13.5 of the Act expressly bars the

plaintiff’s claim. The plaintiff argues that the provisions of section 13.5 will not bar her action

absent proof that Advocate’s Immunization Policy “was intended to stop the spread of COVID.”

She contends that the applicability of section 13.5 is a question of fact, the resolution of which is

inappropriate in the context of a motion to dismiss.

¶9 This case comes to us on appeal from an order dismissing the plaintiff’s complaint pursuant

to section 2-619(a)(9) of the Code which provides for involuntary dismissal in cases where “the

claim asserted against the defendant is barred by other affirmative matter avoiding the legal effect

of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2022). Our review is de novo. Kedzie

& 103rd Currency Exchange Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). In conducting that review,

we accept as true all well-pleaded facts in the plaintiff’s complaint and draw all reasonable

inferences from those facts which are favorable to the plaintiff. Sandholm v. Kuecker, 2012 IL

111443, ¶ 55. Our function is to determine “whether the existence of a genuine issue of material

fact should have precluded the dismissal or, absent such an issue of fact, whether the dismissal is

proper as a matter of law.” Kedzie & 103rd Currency Exchange Inc., 156 Ill. 2d at 116-17.

¶ 10 It is not disputed that section 5 of the Act provides that it is unlawful for any institution to

discriminate against any person in any manner because of that person’s conscience refusal to

receive health care services contrary to her conscience. 745 ILCS 70/5 (West 2020). It is also

undisputed that section 12 of the Act provides in relevant part that: “Any person *** injured by

any public or private *** corporation by reason of any action prohibited by *** [the] Act may

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commence a suit therefore.” 745 ILCS 70/12 (West 2020). To state a claim for employment

discrimination predicated on a violation of section 5 of the Act under the circumstance present in

this case, the plaintiff was required to allege (1) that she refused to receive COVID-19

immunization contrary to her conscience, (2) that Advocate knew of her conscientious beliefs, and

(3) that Advocate fired her because she refused to receive COVID-19 immunization contrary to

her conscience. See Rojas v. Martell, 2020 IL App (2d) 190215, ¶ 50,

¶ 11 As noted earlier, the plaintiff’s complaint set forth factual allegations supporting each of

the elements of a claim for employment discrimination based on Advocate’s alleged violation of

section 5 of the Act. Advocate sought dismissal pursuant to section 2-619 of the Code. The

motion assumes that a cause of action has been stated, but asserts affirmative matter that bars the

plaintiff’s claim. Lake Point Tower Condominium Ass’n v. Waller, 2017 IL App (1st) 162072, ¶

11. The affirmative matter in this case is section 13.5 of the Act which provides as follows:

“Violations related to COVID-19 requirements. It is not a violation of this Act for any

person or public official, or for any public or private association, agency, corporation,

entity, institution, or employer, to take any measure or impose any requirements, including,

but not limited to, any measure or requirements that involve provision of services by a

physician or health care personnel, intended to prevent contraction or transmission of

COVID-19 or any pathogens that result in COVID-19 or any of its subsequent iterations.

It is not a violation of this Act to enforce such measures or requirements. This Section is a

declaration of existing law and shall not be construed as a new enactment. Accordingly,

this Section shall apply to all actions commenced or pending on or after the effective date

of this amendatory Act of the 102nd General Assembly. Nothing in this Section is intended

to affect any right or remedy under federal law.” 745 ILCS 70/13.5 (West Supp. 2021).

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The statute was passed by the General Assembly on November 8, 2021, and had an effective date

of June 1, 2022. By its very terms, the statute applies to the plaintiff’s action which was pending

on its effective date.

¶ 12 Advocate argues that section 13.5 of the Act is an absolute bar to the plaintiff’s action. As

noted earlier, the plaintiff argues that the provisions of section 13.5 will not bar her action absent

proof that Advocate’s Immunization Policy “was intended to stop the spread of COVID.” She

contends that the applicability of section 13.5 is a question of fact, the resolution of which is

inappropriate in the context of a motion to dismiss. Advocate counters that the rationale employed

by the plaintiff in support of her arguments in this regard is the same as was rejected in Krewionek,

2022 IL App (2d) 220078. Our resolution of the question of whether the plaintiff’s action is barred

by section 13.5 is based on our interpretation of that statute.

¶ 13 The construction of a statute is a question of law which we resolve de novo. Rojas, 2020

IL App (2d) 190215, ¶ 19. “The primary rule of statutory interpretation, to which all other rules

are subordinate, is that a court should ascertain and give effect to the intent of the legislature.”

Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). The best indication of

legislative intent is the plain language of the statute. Rojas, 2020 IL App (2d) 190215, ¶ 20. When

the language of the statute is clear and unambiguous, the language will be given effect as written

without resort to any other principle of statutory construction. Solich v. George & Anna Portes

Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). If the language of a statute

is ambiguous, we resort to other principles of statutory construction. Id. A statute is ambiguous

when it is susceptible to more than one reasonable interpretation. Sangamon County Sheriff’s

Department v. Illinois Human Rights Comm’n, 233 Ill. 2d 125, 136 (2009). A statute is not

ambiguous merely because the parties disagree about its meaning. Castro v. Police Board, 2016

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IL App (1st) 142050, ¶ 32. The question of whether a statute is ambiguous is one of law which

we resolve de novo. Freeman United Coal Mining Co. v Industrial Comm’n, 317 Ill. App. 3d 497.

503 (2000).

¶ 14 We find no ambiguity in the language of section 13.5 of the Act. By the plain terms of the

statute, it is not a violation of the Act for any public or private corporation or entity to take any

measure, or impose any requirements, intended to prevent contraction or transmission of COVID-

19 or any pathogens that result in COVID-19 or any of its subsequent iterations; nor is it a violation

of the Act to enforce such measures or requirements. According to the plaintiff, the phrase

“intended to prevent contraction or transmission of COVID-19” means a measure or requirement

that “was intended to stop the spread of COVID.” She argues that the word “prevent” must be

interpreted to mean to “stop.” In rejecting this very argument, the court in Krewionek wrote:

“Initially, we note that section 13.5 and the phrase “intended to prevent contraction

or transmission of COVID-19” is not ambiguous as applied to a healthcare employer’s

requirement that all employees receive a COVID-19 vaccination. We disagree that the

word “prevent” exclusively invokes the concept of impossibility. Even the definition of

prevent cited by the plaintiffs does not require impossibility; it provides that to prevent

means to render an event impractical or impossible. Plaintiffs have focused on a single

definition of prevent that requires that a preventative measure will render an event

impossible to the exclusion of other definitions of prevent that carry no such implication.”

Krewionek, 2022 IL App (2d) 220078, ¶ 34.

After giving several examples of dictionary definitions of “prevent” that contain concepts much

broader than merely to stop, such as to hinder and to interpose an obstacle, the court in Krewionek

went on to find that: “Plainly, a measure aimed at creating a high degree of resistance to a disease

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is a measure intended to prevent, i.e., to hinder or impose an obstacle to, the contraction and

transmission of that disease.” Id., ¶ 35.

¶ 15 We need not, however, resolve the debate between the parties as to the definition of the

word “prevent” as used in section 13.5. Absent from the plaintiff’s analysis is a recognition that

the statute does not require that that the measures or requirements adopted by an employer actually

prevent contraction or transmission of COVID-19; rather, it requires only that the measure or

requirement imposed be “intended to prevent contraction or transmission of COVID-19.”

(Emphasis added.) 745 ILCS 70/13.5 (West Supp. 2021).

¶ 16 In this case, Advocate filed the declaration of Dr. Citronberg, its Executive Medical

Director, Infectious Diseases and Prevention. Under penalties of perjury, Dr. Citronberg attested

to the following. He was significantly involved in Advocate’s decision in 2021 to mandate the

COVID-19 vaccine for all employees.” The “requirement was intended to prevent the

transmission and contraction of COVID-19 among Advocate’s patients, employees, and the

communities we serve.” The purpose of Advocate’s Immunization Policy is to “’minimize

transmission of infectious diseases in the workplace and the communities we serve by providing

occupational protection to Healthcare Professionals, thus preventing transmission of infectious

diseases.’” Dr. Citronberg went on to state that “Advocate decided to mandate that all employees

receive the COVID-19 vaccination as a condition of employment in order to prevent contraction

and transmission of the virus in the most effective way possible.” He concluded that “Advocate’s

COVID-19 mandate was effective in preventing the contraction and transmission of COVID-19

and preventing severe sickness.” The plaintiff filed no counter-affidavit or declaration.

¶ 17 The plaintiff relies upon the declarations of Drs. Barnes and Arwady in support of her

argument that vaccination for COVID-19 does not prevent the contraction or transmission of the

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virus because vaccinated individuals can still acquire and spread the virus. The argument misses

the point. Had the legislature provided that it is not a violation of the Act for an entity to adopt

and enforce a measure or requirements that actually prevent contraction or transmission of

COVID-19, the plaintiff’s argument might have some merit. However, the plain and unambiguous

language of section 13.5 provides that it is not a violation of the Act for any person, entity, or

corporation to take any measure or impose any requirements intended to prevent the contraction

or transmission of COVID-19. Dr. Citronberg‘s declaration established that Advocate’s decision

to mandate the COVID-19 vaccine for all employees was intended to prevent the transmission and

contraction of COVID-19, which is all that section 13.5 requires. So long as Advocate adopted

its Immunization Policy with the intention to prevent the transmission and contraction of COVID-

19, as Dr. Citronberg has stated, then it was not a violation of the Conscience Act for Advocate to

enforce that policy. 745 ILCS 70/13.5 (West Supp. 2021).

¶ 18 Having found that Advocate met its burden of establishing that it adopted its Immunization

Policy with the intention of preventing the transmission and contraction of COVID-19, we

conclude that there is no genuine issue of fact on the question of whether Advocate violated the

Act when it adopted its Immunization Policy which required the plaintiff and other employees to

either provide proof of COVID-19 immunization by October 15, 2021, or receive an approved

religious exemption, or when it terminated the plaintiff for noncompliance.

¶ 19 Based on the foregoing analysis, we affirm the circuit court’s order granting Advocate’s

motion pursuant to section 2-619(a)(9) of the Code and dismissing the plaintiff’s action. Having

resolved this appeal based on the provisions of section 13.5 of the Act, we need not address

Advocate’s additional argument that federal law expressly preempts the plaintiff’s action.

¶ 20 Affirmed.

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Len v. Advocate Health, 2023 IL App (1st) 230740

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2022 L 1508; the Hon. John J. Curry, Jr., Judge, presiding.

Attorneys for Appellant: Jared M. Schneider, Esq. 400 W. 7th Street, Suite 105c Bloomington, IN 47404 Phone: 812.758.4888

Attorneys for Appellee: Michael Resis and Heather Bailey Amundsen Davis LLC 150 N. Michigan Ave., Suite 3300 Chicago, IL 60601 Phone: 312.894.3200

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