In 2021, Montana passed House Bill 702, a statute prohibiting persons and entities from withholding goods, services, or employment based on the person’s vaccination status or whether the person has an immunity passport. Vaccination status refers to an indication of whether a person has received one or more doses of a vaccine, while immunity passport refers to a form of record indicating that a person is immune to a disease, either through vaccination or infection and recovery. The latter statute exempted certain facilities from its application, such as licensed nursing homes, long-term care facilities, or assisted living facilities.

Several health care professionals, health care facilities and immunocompromised patients filed suit against the statute claiming that it was in contrast with the employers’ obligation under the Americans with Disabilities Act (“ADA”) to make reasonable accommodations and to provide equitable access to individuals with disabilities. They also alleged that it violated the Occupational Safety and Health Act (“OSHA”) because it prohibited employers from providing a safe workplace and from developing plans to reduce the risk of the spread of the Covid-19. Finally, they claimed that it violated the right to a clean and healthful environment provided for by the Montana Constitutions and the equal protection rights under both the state and federal constitutions on account of the different treatment provided for the “exempted facilities”.

By judgment of 9 December 2022, the District Court of Montana upheld most of plaintiffs’ claims and permanently enjoined the enforcement of the challenged statute in health care settings.

First, the Court held that the statute hindered healthcare employers’ compliance with the ADA. Namely, on account of the challenged statute - which deprived health care employers of the ability to require vaccination or immunity status - the employers were not able to properly consider “possible reasonable accommodations if an employee asks to limit his or her exposure to unvaccinated individuals”; similarly, health care settings were not able to accommodate immunocompromised patients’ safety and health needs.

Second, the Court held that the statute was thus pre-empted by the Occupational Safety and Health Act. The district judge found that vaccine-preventable diseases can be recognized as hazards in health care settings and that the challenged statute had a negative impact on the employer’s duty to protect the workplace against such hazards.

Third, the Court held that the statute was in breach of the equal protection safeguards contained in both federal and state constitutions. The district judge underlined that the purpose of the statute was to prevent discrimination based on actual or perceived vaccination and immunity status. Considering this underlying purpose and that employees at exempted facilities had the same privacy rights as other health care employees, the Court found that defendants had presented no rational basis for protecting privacy rights in one setting but not in the others. “Because there is no rational relationship between the stated privacy objective and the disparate treatment of the providers governed by [the challenged statute], this statutory scheme is unconstitutional”, the Court said.

Reference: Mont. Med. Ass'n v. Knudsen, United States District Court for the District of Montana, Missoula Division, 9 December 2022.

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