Before You Shoot First In Business Litigation, Ask These Questions Sooner Rather Than Later

No business owner likes to be trifled with, insulted, stiffed, screwed over, or otherwise on the receiving end of bad actions that threaten their company, its reputation, or its bottom line. Filled with frustration over a long overdue invoice, full of righteous indignation about a former employee or competitor stealing trade secrets, or seething in anger about a supplier’s failure to keep their promises, a business owner may be quick to call their lawyer and heatedly direct them to immediately “sue the b*stards.”

But an itchy litigation trigger finger can lead to unintended and undesired consequences if the prospective plaintiff does not understand the realities and risks of commercial lawsuits. Unquestionably, there are times when litigation is the best or only recourse in a business dispute, whether with a competitor, customer, or business partner. A lawsuit may be the next necessary step after other attempts to resolve the conflict have failed. Sometimes, immediate court intervention is needed to vindicate or protect a company’s rights. In these situations, having a skilled and tenacious lawyer ready to advance your interests in the courtroom can be indispensable.

However, before you ask your lawyer to run to the courthouse and file a lawsuit on your company’s behalf, you should first know the answers to these questions about business litigation:

Are You Ready For a Years-Long Ordeal?

Never underestimate a lawyer’s ability to turn the simple into the complicated. In a business lawsuit, it happens often. Sometimes, it is by design, with one party using every means available to make the lawsuit as costly and painful to the other as possible.

Unfortunately, the rules and realities of business litigation mean that a seemingly straightforward case can devolve into a years-long slog. Even if your attorney does everything possible to keep the case moving forward, there are plenty of ways the other side can slow things down to a snail’s pace.

The parties may file motion after motion regarding various issues, each with weeks or months-long briefing schedules and hearings. The process of gathering evidence and questioning witnesses, called discovery, can also take a long time and cost a lot of money. You may need to retain experts and pay them handsomely for their reports and testimony. The parties may have to exchange and review thousands of pages of documents or electronic records.

Not only will your attorney spend a great deal of time (and your money) during discovery, but it can also place a disruptive burden on your shoulders and those of key employees. They may need to take time away from doing their jobs to prepare for and attend depositions, while other employees may spend hours searching through files and servers in response to subpoenas or document requests. Unless you’re ready for these possibilities, you may not be ready for contentious litigation.

What If My Case Is a Slam Dunk?

It may not be found in law books, but one of the foundational principles of litigation is that there is no such thing as a “slam dunk” case. No matter how brilliant your lawyer is, at the end of the day your fate lies with a judge or 12 jurors who may see things differently than you do.

Despite your belief in the strength of your case, your business could be on the receiving end of a judgment if the other party pursues a successful counterclaim. Similarly, Alternatively, all of the time and money you’ve invested with your lawyer may be for naught if the judge or jury denies you the damages you seek. Depending on the language of any applicable contract or agreement, the losing side may also suffer the indignity and cost of having to pay the other side’s attorney’s fees.

Can I Collect on Any Judgment I Get?

Of course, you may ultimately win your commercial lawsuit. Your business may obtain a considerable judgment for a large sum of money. But no matter how many zeros that judgment contains, remember that until that money is in your pocket, it is just a piece of paper.

First, whatever the amount of the judgment, subtract from that sum the amount your company paid your attorneys. That can turn a large judgment into a much smaller one. Second, even if you are successful in adding your fees and costs to the judgment, you may need to spend even more money to collect what the defendant owes you.

The judgment debtor may be insolvent, file for bankruptcy, or lead you and your attorney down a rabbit hole of strategies and shell games designed to stifle your collection efforts. The other party may also continue to fight, asking for a new trial or appealing the trial’s outcome to a higher court. The result of these appeals could be a reversal or even an order for a new trial, in which case the entire ordeal starts all over again. This means more bills from your attorney and more years spent engaged in litigation with no end in sight.

Again, none of this means that business litigation is always destructive or counterproductive. It is sometimes the best or only way to obtain the relief your company is entitled to. But if you approach litigation with a shoot first, ask questions later mentality, you may wind up shooting yourself in the foot.

Choose Wisely: 4 Things To Look For When Looking For a Lawyer

I meet with new clients and potential new clients almost daily. When I do, I know that they are in my office because they have a problem that needs to be solved or important issues they must address. These issues can profoundly impact their career, business, family, and future.

I am also acutely aware that the decision as to which attorney they hire to assist them is one they don’t, and shouldn’t, take lightly. Unquestionably, the quality and competence of a lawyer can play a significant role in the outcome of a given matter. How that attorney approaches their practice and relationship with clients can make all the difference between peace of mind and closure or unresolved concerns and constant worry.

Many of the people I speak with have never needed a lawyer before, or at least one versed in the matter at hand. With over 26,000 attorneys in the Chicagoland area alone, according to the Bureau of Labor Statistics, it isn’t hard to find a lawyer. The challenge is finding the right lawyer. And that requires knowing the essential qualities that the best attorneys share.

Based on my decades of diverse experience handling countless matters, here are some qualities you should consider if you are in the process of looking for an attorney:

  1. Knowledge of the Law

It goes without saying that your lawyer should know what they’re doing, including keeping up to date on new developments and approaches. The law is constantly changing; new legislation, court decisions, rules, and guidelines come out all the time. It is crucial to hire a lawyer who not only understands the law as it is but who is aware and alert to the impact of changes that may be coming down the pike.

  1. Experience and Success

So much of what happens in a legal matter is not based on things found in books or statutes; knowing the nuances of both the law and the reality of practice is crucial to obtaining successful results. Look for a lawyer who knows their way around the courthouse, hearing room, or conference room. Look for a lawyer who knows how things work and how things get done. You want a lawyer with experience and success defending cases like yours, so ask about their track record handling such matters. Sound judgment and deep insight aren’t learned in law school or at a seminar. That is something that only comes from years of experience.

  1. Communication

You undoubtedly have many questions about your situation, what may happen next, and what the plan should be going forward. Throughout your case, you’ll want to know that when questions and concerns come up, your attorney will be available and ready to answer and resolve them. You also want a lawyer who will actually listen to you and take the time to understand your needs and goals. If they seem too busy to speak with your or respond to your emails, they are probably too busy to give your matter the attention and effort it needs and deserves.

  1. Empathy and Trust

When you meet with a lawyer, you are not there necessarily to discuss a case or a file; you are talking about your life. You want an understanding and compassionate lawyer with who you can freely speak about your concerns and issues, and you want to feel as if they genuinely care and understand what is at stake. Choose an attorney who makes you comfortable, who is trustworthy and ethical, who you believe will truly expend all necessary efforts on your behalf, and who gives you a feeling of peace of mind every time you leave his office or hang up the phone after speaking with them.

The attorney-client relationship is a unique and important one, and the trust you place in your lawyer is something they should value and work to earn every single day. I certainly do.

Saving Careers: A Conversation With Chicago Professional License Defense Lawyer Louis Fine

Careers are on the line, livelihoods are at stake, and reputations hang in the balance. I never lose sight of that.”

When you ask attorney Louis Fine to describe his practice, his initial response isn’t to tell you about the professional license defense work that has been at the heart of his distinguished career. He doesn’t start by talking about the countless divorces he has handled or the business and real estate deals he has closed. His initial response is much more succinct.

“I help people who need help.”

It’s an apt description for someone who has made assisting others the defining characteristic not only of his law practice, but also of his volunteer and philanthropic work in the community. It’s also a description born of necessity.

“When my kids were very young, they would ask me what it was that I did as a lawyer,” Louis says. “They could understand that a fireman fights fires, that an engineer drives a train, or that an astronaut goes into space, but they couldn’t wrap their heads around what exactly a lawyer was. So I thought about the essence of what I do, and it really comes down to helping people work through difficult problems or achieve a personal or professional goal.”

Protecting Careers and Livelihoods

Louis has devoted a significant amount of his practice to protecting the careers and livelihoods of licensed professionals in Chicago and throughout Illinois. He understands that threats to someone’s license to practice or engage in their chosen career strike at the essence of who they are.

“Whether you’re a physician, an accountant, a hairstylist, or a real estate appraiser, you invested a lot of blood, sweat, and tears in your career,” he says. “It’s not just the years of education and training or the tens or hundreds of thousand dollars in student loans. And it’s not just about being able to make a living. Your career can define who you are and how people perceive you, and how you perceive yourself.”

And when a licensed professional sees an envelope in the mail from the Illinois Department of Financial and Professional Regulation (IDFPR) advising that they are under investigation or may be subject to disciplinary action, all of that hangs in the balance. It can be easy to panic.

“I often get a call right after someone gets that dreaded letter or notice from IDFPR,” Louis says. “There is a lot of understandable anxiety and concern, often mixed with righteous indignation or disbelief.”

He says that in addition to reviewing the complaint and gathering the facts, his initial task is helping clients take a breath and explaining to them what is happening – and what isn’t.

“Things are always scarier when you don’t understand what’s going on. I try to put things in context and provide clients with some peace of mind that, while IDFPR actions must be addressed seriously, it isn’t necessarily the catastrophe it may appear to be,” he says.

“In any career where you are serving others, you’re going to make someone unhappy. There will always be at least one patient or client who thinks you have wronged them or that you were incompetent or worse,” Louis advises. “Many of these complaints involve nothing of substance. That is why many if not most IDFPR complaints and investigations are resolved either after an informal hearing or without any action being taken at all.”

Understanding IDFPR Inside and Out

However, Louis knows better than anyone that when the IDFPR believes that a licensed professional has engaged in misconduct and launches an investigation or commences disciplinary proceedings, things can be deadly serious.

He also knows how and why the IDFPR makes the decisions and takes the actions they do. That’s because he used to be the one making the decisions and taking the actions.

Louis served as IDFPR’s Chief Prosecuting Attorney and as an administrative law judge for many years, giving him unique insight into how the board handles licensure issues and how to navigate the process in a way that is most likely to lead to a positive outcome for a licensee. His experience investigating and prosecuting licensed professionals also made him appreciate how unfair the disciplinary process can sometimes be.

“The IDFPR’s procedural rules and practices put licensees at a sometimes crippling disadvantage in disciplinary proceedings,” Louis says. “For example, a licensee’s ability to pursue the discovery necessary to defend themselves is extremely limited. In fact, the extent of allowable discovery is determined by the very people who are prosecuting the case.”

The other big problem, according to Louis, is that the hearing officers presiding over disciplinary proceedings are not independent.

“They are employed and paid by the IDFPR, just as the prosecuting attorneys are,” he notes. “Whether a hearing officer is consciously biased or not, the fact that their paychecks are coming from the very same folks who are seeking to discipline a respondent creates an implicit conflict of interest and calls into question the fairness of the entire process.”

Despite these challenges, Louis has successfully defended countless Illinois professionals, protecting their licenses and helping them move forward with their careers and lives. And as Louis will be the first to tell you, helping is what his job is all about.

Forming a Dental Partnership? Make Sure To Address These 4 Key Issues

Solo dental practitioners get to call all the shots, run their practice as they like, and control their own destiny. But going it alone also means paying all the bills, covering all overhead, assuming all management responsibilities, and competing with other practices that may have greater resources and reach. That is why many solo practitioners ultimately decide to join forces with one or more colleagues and form a dental partnership.

But for a dental partnership to succeed, the partners need to start on the right foot and be on the same page. As with marriages, the relationship between dental partners can deteriorate if they have different understandings of their roles and responsibilities, fail to communicate expectations clearly, or otherwise disagree on the management or direction of the practice. While no document can guarantee that a dental partnership will last forever, a well-crafted dental partnership agreement prepared with the assistance of experienced counsel can minimize the likelihood and fallout from conflicts and maximize the potential for a long and lucrative professional relationship.

As you contemplate your prospective partnership agreement, pay particular attention to these four key provisions:

Management Rights

Not all partnerships and not all partners are created equal. While an equal say in management may work for some, it may not be desired or optimal in other circumstances, such as when a more senior dentist joins forces with a more junior one.

A partnership agreement should specify who has the authority to make decisions, what decisions they are empowered to make, and how and when they can delegate decision-making authority. The agreement may also stipulate that certain, more significant management decisions require the approval of all or the majority of partners.

Non-Competition and Non-Solicitation Provisions

As much as a dental partnership may benefit all partners today, tomorrow may see one of the dentists decide to move on to greener pastures. When that happens, the remaining partner will want to ensure that those pastures don’t fill up with their existing patients and employees.

That is why dental partnership agreements frequently include non-competition and non-solicitation provisions. However, these provisions must be carefully tailored and not be overly broad or oppressive. Courts do not generally favor contractual provisions that limit the ability of someone to earn a living in their chosen profession, so judges carefully scrutinize these clauses, and deem them unenforceable if they are overly broad in scope or too vague.

Admission of New Partners

The partnership agreement should set forth if, how, and when new dentists may join the practice. Such provisions may include stating a minimum capital contribution that a prospective partner must make to join the practice or clarifying whether the decision to admit a new partner is subject to vote by the other partners. To ensure the new partner meets the partnership’s standards and qualifications, the agreement may include representations and warranties made by the incoming partner about their licensure status, malpractice history, and other matters.

Exiting the Practice

As noted, partners may decide to move on. The agreement should include provisions that establish a clear, orderly, equitable way for a dentist to leave the partnership. The contract may address whether a partner may dissociate before a set period and which events may be grounds for dissociation. It can also provide a buyout formula when a partner decides to leave according to the terms of the agreement or liquidated damages or other remedies if a partner dissociates in violation of the partnership agreement.

Serving The Dental Community For Decades

Over the past several decades, I have provided counsel and guidance for the dental community and other professionals licensed by the Illinois Department of Financial and Professional Regulation on a wide range of legal matters. If you are considering entering into a dental partnership, please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation.

You Can’t Please Everyone: What To Do – and What NOT To Do – When You Receive an Illinois Professional License Complaint

Illinois licensed professionals of all stripes – from physicians and accountants to hairstylists and mortgage brokers – work with countless clients and patients throughout their long careers. As a Chicago professional license defense attorney, I’ve done the same. If you are one of those professionals, you are probably great at what you do, skilled and ethical, and with a long roster of folks singing your praises and leaving you glowing reviews.

But you can’t please everyone.

It is almost inevitable that one of the people you’ve served over the years will have some gripe about their experience with you, whether justified or not. That means the odds are pretty good that you will open your mail one day to find an unexpected and unwelcome letter from the Illinois Department of Financial and Professional Regulation (IDFPR) advising you that someone has lodged a professional license complaint against you and/or that you are under investigation.

Don’t Make a Potentially Bad Professional License Situation Potentially Worse

Such a letter can make bills and junk mail look good. A notice from the IDFPR can get your heart racing and blood boiling. After all, everything you’ve worked so hard for is under attack. Adverse action by the IDFPR can result in the suspension or revocation of your license, threaten your Illinois professional license renewal, and destroy your career, your livelihood, and your reputation.

When you get an IDFPR notice, you have a critical choice to make. You can react emotionally and angrily; with righteous indignation at the complaining client/patient or the IDFPR. But acting out of emotions such as fear or anger can only make the situation worse and create problems that would not have existed had you only proceeded in a calm, thoughtful, and responsive way. So, keep these four tips in mind if and when you find out that the IDFPR is investigating a professional license complaint against you:

  1. Keep Calm and Carry On

While your heart may start beating faster when you get a professional license complaint or notice of investigation, don’t panic. One, panic and irrationality rarely lead to good things and wise decisions. More importantly, panic is likely unwarranted. Many if not most IDFPR complaints and investigations are resolved either after an informal hearing or without the Department taking any action at all. Not that you shouldn’t take the matter seriously. You should absolutely retain an experienced Illinois professional license defense lawyer and respond in a complete and timely manner.

  1. Ignorance Isn’t Bliss

As unfounded as you believe the complaint or the IDFPR’s basis for investigating you may be, ignorance is not bliss. Failing to respond – or responding in a dismissive and contemptuous manner – just because you believe the matter to be bogus will create problems where perhaps none existed. Don’t angrily crumple up the letter or shove it in your desk drawer. Just failing to respond in a timely fashion to an initial IDFPR inquiry could subject you to discipline, even if there was no merit to the underlying complaint.

  1. Bite Your Tongue

One of the worst things you can do is respond directly to or take any adverse action against the person who filed the complaint. In particular, do not under any circumstances take out your frustrations online or get involved in a social media spat with the complainant about their allegations and issues. For licensed physicians especially, breaches of online professionalism standards have been the subject of increasing scrutiny and disciplinary action by state medical boards.

  1. Hire an Experienced IDFPR Defense Attorney

The policies and procedures that govern IDFPR investigations, hearings, and imposition of sanctions are unique, complicated, and often unwritten and informal. The rules can also be terribly unfair. Even skilled and experienced attorneys who do not practice before IDFPR can find themselves at a loss when dealing with licensure issues. You are no doubt intelligent and know your profession well, but don’t make the mistake of thinking that you can or should handle an IDFPR investigation on your own. Your reputation, career, and livelihood are at stake. Defending yourself before the IDFPR is a gamble you can’t afford. Call an experienced Chicago professional license defense attorney as soon as possible after you’ve received that dreaded letter, and let them ease your fears and take the steps necessary to protect your license and your future.

Louis Fine: Chicago Professional License Defense Lawyer

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome when Illinois professional licensing issues arise.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

No Time to Roll The Dice: 3 Reasons You Need a Professional License Defense Attorney When IDFPR Comes Calling

If you hold a professional license in Illinois, the Illinois Department of Financial and Professional Regulation (IDFPR) holds your career in its hands. If they deny your Illinois professional license renewal, notify you of a complaint, launch an investigation, or start disciplinary proceedings against you, everything is on the line.

Everything you worked so hard for, everything you studied for, every bit of time and energy and money you’ve invested in your career depends on the decisions these regulators make. And if you attempt to navigate the complex and often unfair IDFPR investigative and disciplinary process on your own without the help of an Illinois professional license defense lawyer, you are taking a huge gamble with your future.

Unfortunately, many otherwise intelligent and prudent professionals take that gamble only to later regret it when their Illinois professional license renewal is denied or the IDFPR takes disciplinary action that results in the suspension or loss of their license or other damaging sanctions.

To take from the movie The Untouchables, going up against the IDFPR without an experienced Illinois professional license defense attorney in your corner is like bringing a knife to a gunfight.

Here are three reasons you need to hire a professional license lawyer when the IDFPR threatens your career:

  1. You Don’t Know What You Don’t Know

The policies and procedures that govern IDFPR license applications and renewals, investigations, hearings, and imposition of sanctions are unique, complicated, and often unwritten and informal. Even skilled and experienced attorneys who do not practice before IDFPR can find themselves at a loss when dealing with licensure issues. You may be the target of a completely meritless client/patient complaint; you may have all of the facts on your side and the documentation or witnesses to prove it. But all of your arguments and evidence may never see the light of day if you don’t know the proper way to present your case.

  1. You May Blow Your Chance To Resolve Things Quickly and Favorably

Your lack of knowledge of the process and how IDFPR prosecuting attorneys think and work also means you may miss out on opportunities to resolve your case sooner, cheaper, and with a more positive outcome. The ability to effectively reach a negotiated resolution with prosecutors depends on understanding the range of consequences, the risks involved in proceeding to a full hearing, and the likelihood of obtaining a successful result. Unless you have had extensive experience defending your professional license (which is hopefully not the case), you will be at an overwhelming disadvantage in negotiations with IDFPR prosecuting attorneys.

  1. The Deck Is Stacked Against You

Even worse, the process can be manifestly unfair and stacked against you. Experienced and aggressive prosecutors have your license in their sights, and the hearing officer who will determine your fate is not necessarily independent and unbiased. IDFPR hearing officers are employed and paid by the IDFPR, just as the prosecuting attorneys are. Whether a hearing officer is consciously biased or not, the fact that their paychecks are coming from the same folks seeking to discipline a respondent creates an implicit conflict of interest and calls into question the fairness of the entire process.

You are no doubt intelligent and know your profession well, but don’t make the mistake of thinking that you can or should handle an IDFPR investigation on your own. Your reputation, career, and livelihood are at stake. Now is not the time to take a flyer and hope for the best.

Louis Fine: Chicago Professional License Defense Attorney

As a former Chief Prosecuting Attorney and administrative law judge for IDFPR, I have seen the serious consequences that an adverse enforcement decision can have on professionals who suddenly find their future in disarray. I understand how and why the Department decides to pursue investigations, how it handles negotiations, and how to approach formal proceedings in a way that gives my clients the best possible chance of a positive and expeditious outcome when Illinois licensing issues arise.

Please give me a call at (312) 236-2433 or fill out my online form to arrange for your free initial consultation. Together, we will get you back to your clients and your career.

IDFPR Puts Doctors On Notice: Spread COVID-19 Misinformation Or Quack Treatments And We Will Come After Your License

As I discussed in a post a few months back, physicians across the country are being called out for spreading misinformation and disinformation regarding COVID-19, vaccines, and the efficacy of other preventative measures such as masking. During the summer, the Federation of State Medical Boards (FSMB) issued a stern admonition about the misinformation epidemic among members of the profession, stating unequivocally that “Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license.”

Recently, the Illinois Department of Financial and Professional Regulation (IDFPR) explicitly confirmed that they see physician disinformation about COVID-19 as a serious ethics violation warranting equally serious disciplinary action. Illinois doctors who peddle information about the virus or vaccines that is not based on sound science risk losing their professional licenses and careers.

On November 5, 2021, IDFPR issued its “Notice that Advice or Treatment Regarding Covid-19 Must Conform with Evidence-Based Medicine and Standards of Care.” It began by reminding physicians that, as a general matter, “any advice or treatment provided to a patient must conform with evidence-based medicine and standards of care and that failure to do so may subject the individual to disciplinary action under the Medical Practice Act.”

The Department further noted that “Engaging in dishonorable, unethical, or unprofessional conduct of a character likely to deceive, defraud or harm the public” is a violation of the Medical Practice Act at 225 ILCS 60/22(A)(5). IDFPR makes it clear that it sees COVID-19 misinformation or the recommendation of unproven and unapproved treatments as conduct “likely to deceive, defraud, or harm the public.”

The notice calls out three specific forms of COVID-related misconduct that it views as possible ethical violations:

Issuing Mask Exemptions For Non-Patients

As kids returned to school this fall in districts with mask requirements, reports emerged about physicians issuing medical exemption notes to parents of schoolchildren with whom they did not have a doctor-patient relationship. For example, one Pennsylvania doctor who is vocally anti-mask is facing disciplinary action for posting a stock, four-page exemption letter on the homepage of his practice’s website that invited people to “print your own copy.”

IDFPR stated unequivocally that such conduct is a violation of the Medical Practice Act:

“A physician or other licensed healthcare professional who provides a mask exemption to an individual with whom they do not have a clinician-patient relationship and for whom they have not provided a medical diagnosis that justifies a mask exemption as put forth in the CDC guidelines, is in violation of their respective licensing Act and may be subject to disciplinary action by IDFPR.”

Ivermectin And Other Non-FDA Approved Treatments

Since the pandemic began, people from TV preachers to conspiracy theorists to herbalists to twice-impeached former presidents have peddled all kinds of snake oil for preventing or treating COVID-19. This includes the horse deworming medication Ivermectin.

Noting that the CDC has issued an official health advisory regarding severe illness associated with the use of products containing Ivermectin to prevent or treat COVID-19, IDFPR stated that  “A physician or other licensed healthcare professional who prescribes Ivermectin in a manner inconsistent with the CDC’s recommendations may be subject to discipline.”

COVID-19 Misinformation By Physicians

Finally, IDFPR voiced its strong support for FSMB’s statement on misinformation relating to COVID-19 as quoted above. It also announced that it would follow the joint statement from the American Board of Family Medicine, the American Board of Internal Medicine, and the American Board of Pediatrics about COVID-19 misinformation by physicians in which they concluded that “providing misinformation about a lethal disease is unethical, unprofessional and dangerous.”  That statement also said that the groups “want all physicians certified by our Boards to know that such unethical or unprofessional conduct may prompt their respective Boards to take action that could put their certification at risk.”

The IDFPR also encourages anyone who becomes aware of a licensed health professional’s dissemination of misinformation or practice inconsistent with current state and federal guidelines regarding COVID-19 to file a complaint.

IDFPR’s firm stand against COVID-19 misinformation should put all Illinois medical professionals on notice that their words about COVID vaccines have consequences, not only to the health and well-being of the general public, but to their careers and reputations as well.

Faith v. Phony: How Should Employers Evaluate Employees’ Claimed “Religious” Objections to COVID-19 Vaccination Mandates?

Questioning the legitimacy of someone’s faith or religious beliefs is a tricky business. But employers across the country, from major corporations to local governments, have to deal with such deeply personal inquiries with increasing frequency as many employees and job candidates opposed to COVID-19 vaccine mandates seek “religious exemptions” from having to get the shot.

Recognizing the uncomfortable and somewhat perilous task faced by employers when such claims arise, the Equal Employment Opportunity Commission (EEOC) released new guidance on October 25, 2021, specifically addressing how employers should evaluate requests for religious exemptions from vaccine mandates. The new Section L of the EEOC’s omnibus COVID-19 page supplements previous direction about employer obligations regarding claimed religious objections to vaccinations.

The Basis for Religious Exemption Claims

The basis for religious exemptions to employer COVID-19 vaccine mandates is found in Title VII of the Civil Rights Act of 1964. Title VII requires an employer, upon receiving notice, to reasonably accommodate an employee whose “sincerely held religious belief, practice, or observance” conflicts with a job requirement, such as a company-wide vaccination mandate, unless providing the accommodation would create an undue hardship for the employer.

Accordingly, the threshold question for employers when an employee advises them of their request for a “religious accommodation” to an employer COVID-19 vaccine requirement is determining whether the objection to getting the shot is, in fact, based on a “sincerely held religious belief.”

What Is a “Religious Belief”?

The definition of “religion” under Title VII not only includes widely recognized faiths like Christianity, Judaism, Islam, or Hinduism, but it also protects nontraditional religious beliefs that may be unfamiliar to employers. However, as the EEOC clarifies, “social, political, or economic philosophies, as well as mere personal preferences, are not religious beliefs protected by Title VII.”

Therefore, employers are free to disregard exemption requests premised on concerns about “personal freedom,” the underlying legal legitimacy of vaccine mandates, or conspiracy-laden claims about microchips, magnetism, or other disinformation about COVID vaccines.

How To Determine Whether an Employee’s Religious Belief Is “Sincerely Held”

As the EEOC notes, “Whether or not a religious belief is sincerely held by an applicant or employee is rarely at issue in many types of Title VII religious claims.” But the reluctance of many workers to get vaccinated or their refusal to comply with employer or government vaccine mandates has made this very much an issue.

That’s because many employees who refuse to get vaccinated against COVID-19 for non-religious reasons are trying to incincerely and improperly shoehorn those objections  into Title VII’s religious protections. As the New York Times recently reported, “Vaccine-resistant workers are sharing tips online for requesting exemptions to the requirements on religious grounds; others are submitting letters from far-flung religious authorities who have advertised their willingness to help.”

This puts employers in the delicate position of questioning the sincerity of an employee’s faith and religion. According to the EEOC, an employee’s sincerity in holding a religious belief is “largely a matter of individual credibility.” When evaluating that credibility, the EEOC says that employers can consider the following “factors that – either alone or in combination – might undermine an employee’s credibility”:

  • Whether the employee has acted in a manner inconsistent with the professed belief (although employees need not be scrupulous in their observance).
  • Whether the accommodation sought is a particularly desirable benefit that is likely to be sought for nonreligious reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons).
  • Whether the employer otherwise has reason to believe the employee is not seeking the accommodation for religious reasons.

Employers can ask an employee to explain how their claimed religious beliefs conflict with a COVID-19 vaccine mandate. The EEOC advises that employers:

“Should not assume that an employee is insincere simply because some of the employee’s practices deviate from the commonly followed tenets of the employee’s religion, or because the employee adheres to some common practices but not others. No one factor or consideration is determinative, and employers should evaluate religious objections on an individual basis.

If you are a business owner and have questions about how to address religious or other objections to your company’s COVID-19 vaccination policies, please give me a call at 312-236-2433 or fill out my online form to arrange for your free initial consultation.

Physicians Who Contribute To The Epidemic Of COVID Vaccine Misinformation Put Their Licenses At Risk

The epidemic continues. It continues to spread unabated. It continues to fill up hospitals and morgues. And if a physician contributes to this epidemic of misinformation and disinformation surrounding COVID-19 vaccines, they could face disciplinary action, including the loss of their license to practice medicine.

That is the position of the Federation of State Medical Boards (FSMB), which has come out strongly against the spread of vaccine misinformation among members of the medical profession. It is not a theoretical problem, either. While the internet, school board meetings, and legislatures are full of individuals outside of the profession who spout nonsense about vaccines after “doing their own research,” there are also plenty of doctors, nurses, and other healthcare professionals who have spread false and misleading information about the safety or efficacy of vaccines.

In a statement dated July 29, 2021, FSMB issued a stern warning “in response to a dramatic increase in the dissemination of COVID-19 vaccine misinformation and disinformation by physicians and other health care professionals on social media platforms, online and in the media.”

The federation made clear its opinion that those who spread vaccine misinformation should face disciplinary sanctions:

Physicians who generate and spread COVID-19 vaccine misinformation or disinformation are risking disciplinary action by state medical boards, including the suspension or revocation of their medical license. Due to their specialized knowledge and training, licensed physicians possess a high degree of public trust and therefore have a powerful platform in society, whether they recognize it or not. They also have an ethical and professional responsibility to practice medicine in the best interests of their patients and must share information that is factual, scientifically grounded and consensus-driven for the betterment of public health. Spreading inaccurate COVID-19 vaccine information contradicts that responsibility, threatens to further erode public trust in the medical profession and puts all patients at risk.”

FSMB has not yet formally defined “misinformation” or “disinformation” in its policy, but its ethics committee plans to provide more guidance at a later date. However, an FSMB spokesman has said that it considers misinformation to be “sharing or distributing verifiably false information” and disinformation as “sharing or distributing information that the distributor knows is false.” 

Other professional organizations are backing up the FSMB. On September 9, 2021, the American Board of Family Medicine, the American Board of Internal Medicine, and the American Board of Pediatrics issued a joint statement in which they explicitly endorsed the FSMB’s position, adding that they “want all physicians certified by our Boards to know that such unethical or unprofessional conduct may prompt their respective Board to take action that could put their certification at risk.”

Other groups of physicians and healthcare professionals are joining in the fight against misinformation spread by members of the profession. In a September 21, 2021 Washington Post opinion column, three physicians, including an Illinois endocrinologist, announced the launch of NoLicenseForDisinformation, “a grassroots campaign that aims to ensure that physicians who spread Covid-19 disinformation are held accountable.”

This profession-wide pushback against disinformation should put all medical professionals on notice that their words about COVID vaccines have consequences, not only to the health and well-being of the general public, but to their careers and reputations as well.

What Illinois Medical Practice Owners Need to Know About Pritzker’s Vaccination Mandate For Healthcare Workers

There is no more debate for healthcare workers in Illinois about whether to get vaccinated against COVID-19 (not that there should have been any debate), at least if they want to continue working. On August 26, 2021, Gov. J.B. Pritzker issued Executive Order 2021-20, which mandates that almost all healthcare professionals and staff in the state must get their shots, subject to certain narrow exceptions. The Order took effect immediately. Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

Physicians and medical practice owners need to understand the governor’s vaccination mandate for their staff to ensure compliance. Here is what physician/owners need to know:

All “Health Care Workers” Must Receive At Least One Dose By Sept. 5

The Order requires all “Health Care Workers” to:

  • receive at least the first dose of a two-dose COVID-19 vaccine series or a single-dose COVID-19 vaccine by September 5, 2021, and
  • be fully vaccinated against COVID-19 within 30 days following administration of their first dose in a two-dose vaccination series.

“Health Care Workers” and “Health Care Facilities” Covered By The Vaccine Mandate

As defined in the governor’s order, “Health Care Workers” covered by the vaccine mandate are those who:

  • are employed by, volunteer for, or contract to provide services for a Health Care Facility, or are employed by an entity that is contracted to provide services to a Health Care Facility, and
  • are in close contact (fewer than 6 feet) with other persons in the facility for more than 15 minutes at least once a week on a regular basis as determined by the Health Care Facility.

With the exception of state-owned or operated facilities, almost any facility or office that provides medical care is a “Health Care Facility” whose workers, as defined above, must get vaccinated. This includes:

  • physician offices
  • dental offices
  • ambulatory surgical treatment centers
  • hospices
  • hospitals
  • 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)
  • Specialized Mental Health Rehabilitation Facilities
  • assisted living facilities
  • supportive living facilities
  • medical assistance facilities
  • mental health centers
  • outpatient facilities
  • rehabilitation facilities
  • residential treatment facilities
  • adult day care centers

Unvaccinated Workers Barred From Premises Until Tested

As of September 5, 2021, covered Health Care Facilities must ban from their premises any Health Care Worker who has not provided proof (CDC vaccination card, photo of card, or documentation from a health care provider) that they have been fully vaccinated unless they submit to testing as follows:

  • Health Care Workers who are not fully vaccinated against COVID-19 must be tested for COVID-19 weekly, at a minimum.
  • Such testing for Health Care Workers who are not fully vaccinated against COVID-19 must be conducted on-site at the Health Care Facility or the Health Care Facility must obtain proof or confirmation from the Health Care Worker of a negative test result obtained elsewhere.

Those With Medical and Religious Exemptions From Vaccination Mandate Still Require Weekly Testing

Consistent with federal law, the Order provides medical, religious, and Americans With Disabilities Act exemptions, though any workers who qualify for an exemption must submit to weekly testing.

To qualify for a vaccination exemption, a worker must demonstrate that:

  • vaccination is medically contraindicated, including any individual who is entitled to an accommodation under the Americans with Disabilities Act or any other law applicable to a disability-related reasonable accommodation, or
  • vaccination would require the individual to violate or forgo a sincerely held religious belief, practice, or observance. 

The Order does not specify what consequences or penalties could be imposed on medical practices for violation of the vaccine mandate, but it does authorize state agencies to “promulgate emergency rules as necessary to effectuate this Executive Order.” Accordingly, practices should establish clear policies and protocols for ensuring that their staff is fully vaccinated, as well as implement a testing program for unvaccinated workers. They should also be prepared to send home any employee who does not comply with the Order.

If you are a medical practice owner and have questions about the governor’s vaccination mandate for your employees, please give me a call at 312-236-243 or fill out my online form to arrange for your free initial consultation.