Appellate Court Dismisses TRO Appeal as Moot
Feb 18, 2022
Just before midnight on February 17, 2022, the Fourth District Appellate Court issued an order holding that the appeal of the temporary restraining order (TRO) issued by Judge Grischow on February 4 is moot. The Court declined to rule on the merits of Judge Grischow’s order, which declared that ISBE and IDPH emergency rules were “null and void” and restrained the State from enforcing several executive orders. The Court reasoned that there is no live legal issue because the emergency rules addressed by the TRO had expired and, based on the Joint Committee on Administrative rules (JCAR) objection to renewing IDPH emergency rules and “the changing nature of the COVID-19 pandemic, … it is not clear that these same rules would likely be reinstated.”
As a result, the TRO – as impacted by the JCAR decision – remains in effect. Although executive orders also remain in place at the moment, the State continues to be restrained from taking enforcement action against school districts about requirements for face coverings, close contact exclusions, and COVID-19 vaccination or testing. We understand that many districts have decided to suspend some or all of these mitigation measures based upon their assessment of trends in local public health metrics, practical circumstances, and the TRO ruling and expiration of emergency rules. The Appellate Court’s order adds to these considerations that school districts may reasonably consider in deciding whether to suspend enforcement of these mitigations.
However, the Court clarified that “the language of the TRO in no way restrains school districts from acting independently from the executive orders or the IDPH in creating provisions addressing COVID-19. Thus, it does not appear the school districts are temporarily restrained from acting by the court’s TRO.” The court also noted that the executive order mandating indoor face coverings for school districts (Executive Order 2021-18), unlike the executive orders regarding close contact exclusions, did not refer to IDPH or ISBE emergency rules “as being necessary to effectuate the executive order.” The Court’s statement leaves room for school districts to exercise local discretion with regard to many mitigations, but any such local efforts must comply with existing State regulations. School districts that plan to enforce mitigation measures should consider whether additional action is needed to decouple their requirements from the State’s rules and regulations, and any bargaining implications of such actions.
With regard to requiring face coverings indoors, school districts can still mandate universal masking of all students and staff members, albeit with some risk. Upon expiration of the IDPH emergency rules, a definition of “modified quarantine” is in effect again. In early Fall 2021, a few courts ruled in favor of students who were asserting that requiring masks constituted a modified quarantine because a mask is a device intended to limit disease transmission. Although school districts may face some challenges that a school district cannot mandate universal masking on this basis, we disagree with this interpretation. It is not clear that those courts considered that the definition of modified quarantine discusses a selective, partial limitation of a person or group of persons who are or may have been exposed to a contagious disease. A school district’s decision to require universal masking is not a selective limitation targeting the group outlined in the modified quarantine definition—namely those that are or may have been exposed.
The elimination of the emergency rules also removed certain provisions allowing school districts to exclude students and staff who are close contacts, symptomatic, or tested positive for COVID-19. Excluding asymptomatic close contacts carries a greater legal risk now that the emergency rules are no longer in place, and may be subject to challenges in light of quarantine rules that require a health department directive and then a court order after 48 hours if the individual does not consent to the quarantine. However, a school district can still exclude students and staff who are symptomatic or tested positive for COVID-19 based on their policies and handbook provisions related to absences and illness. In addition, preexisting IDPH rules that were not issued on an emergency basis also require school districts to handle contacts of infectious disease cases as recommended by the local health department.
Finally, although emergency rules are not currently in effect with regard to requirements for school personnel vaccination or testing, school districts can act independently to continue such requirements for all employees under their local authority. The Appellate Court did not address the executive orders with the requirement for vaccination or weekly testing of school personnel, and the TRO only restrains the State from ordering school districts to require tests of unvaccinated individuals without due process. As with universal masking, a decision to require either vaccination or testing for all employees, subject to legally required exemptions, is not a modified quarantine because it is not selective and based on an individual’s or group’s potential or actual exposure to COVID-19. Decisions to continue a vaccination or testing requirement in the absence of a binding state mandate may also have bargaining implications. It is not clear at the time of this publication whether any further appeals may be filed. In the meantime, please contact your Robbins Schwartz attorney with questions.