Montana Vaccine Discrimination Law Found Unconstitutional for Health Care
Author: Emily Scace, XpertHR Legal Editor
December 16, 2022
A federal district judge has ruled that a Montana law prohibiting discrimination based on a person's vaccination status violates the US Constitution and is preempted by federal law, at least as applied in health care settings.
Enacted in 2021, the law at issue in the case classified vaccination status as a protected characteristic under the state's antidiscrimination laws and barred employers from refusing employment or otherwise discriminating against individuals on that basis.
A reaction to the controversy over COVID-19 vaccine mandates, the statute applies to all employers, with limited exceptions for nursing homes, assisted living facilities and long-term care facilities. Health care facilities may ask employees to volunteer their vaccination status for the purpose of determining whether reasonable accommodations are necessary to protect the safety and health of other employees, patients, visitors and other individuals from communicable diseases, as long as the employer actually implements such reasonable accommodations.
Notably, although the law was enacted in response to concern about COVID-19 vaccines, its language applies broadly to all immunizations.
The Montana Medical Association and the Montana Nurses Association challenged the law, claiming it deprived health care employers of a critical tool for providing a safe and effective health care environment and protecting public health. In addition, the plaintiffs alleged that the law violated the Americans with Disabilities Act (ADA), the Occupational Safety and Health Act (OSHA), regulations from the Centers for Medicare and Medicaid Services and the US and Montana Constitutions.
District Judge Donald Molloy agreed. With respect to the ADA, the court found that health care employers are "not able to properly consider possible reasonable accommodation if an employee asks to limit his or her exposure to unvaccinated individuals" without the ability to require vaccination or inquire into an employee's immunity status.
In addition, the court held that the law prevented health care employers from fulfilling their duty under OSHA to provide a workplace free from recognized hazards. "Vaccine-preventable diseases are recognized hazards," the opinion noted, and the law "impacts the requisition of critical knowledge … [for] protecting the workplace against such a hazard."
Because an employer cannot comply with both the Montana law and the federal laws, the state law is preempted in health care settings, the court held.
Judge Molloy also found the law to violate the equal protection guarantees in the state and federal Constitutions, holding that the state lacked a rational reason to treat different types of health care facilities - such as hospitals versus nursing homes - differently.
As a result of these issues, the court granted a permanent injunction preventing enforcement of the vaccine discrimination law in health care settings. It is unknown whether the state will appeal the ruling.
