Federal judge says 'vaccine discrimination' law unconstitutional regarding health care facilities

COVID vaccine
Posted at 3:53 PM, Dec 10, 2022

HELENA — A federal judge has struck down parts of Montana’s “vaccine discrimination” law, ruling it unconstitutional in regard to employers and employees of health care settings.

Montana’s HB 702 prevents employers in Montana from discriminating against an individual due to their vaccination status, effectively preventing employers from requiring any kind of vaccine for employment.

The Montana Medical Association, Montana Nurses Association, a number of medical facilities and impacted individuals challenged the law saying it “jeopardizes physicians’ ability to maintain best practices now in place for protecting patients and staff from vaccine-preventable diseases” and alleged the law is unconstitutional in regards to health care facilities.

On Friday, Judge Donald W. Molloy for the United States District Court for the District of Montana ruled HB 702 violated the Americans with Disabilities Act, the Occupational Safety and Health Act and the Centers for Medicare and Medicaid Services regulations. He also ruled it was unconstitutional under the equal protection clauses of the Montana and United States Constitutions and the inalienable rights section of the Montana Constitution.

Molloy specifically noted that the Americans with Disabilities Act requires employers to consider accommodation to create a safe work environment for workers, including immunocompromised employees.

“Deprived by law of the ability to require vaccination or immunity status of an employee, a health care employer is not able to properly consider possible reasonable accommodation if an employee asks to limit his or her exposure to unvaccinated individuals,” wrote Molloy in his ruling.

Molloy further went on to state HB 702 “removes an essential tool from the health care provider’s toolbox to stop or minimize the risk of spreading vaccine-preventable disease.”

The Republican-backed HB 702 was passed by the 2021 Montana Legislature on party-line votes in both chambers, and was signed into law by Republican Gov. Greg Gianforte on May 7, 2021. The bill came as the local and national debate heated around businesses and organizations requiring the COVID-19 vaccine in order to return to the workplace.

Plaintiffs argued HB 702 went well beyond COVID-19 implications, noting that prior to the pandemic hospitals regularly required vaccines for certain employees, such as influenza and hepatitis B.

“House Bill 702 and this case were never about just COVID. Hospitals and doctors’ offices should be able to make their own decisions about whether to require something like the MMR or hepatitis vaccine,” said Raph Graybill of Graybill Law Firm, PC, lead counsel for MNA. “The Court’s decision ensures that Montanans can obtain safe, quality healthcare without arbitrary government interference.”

In a statement to the Montana Free Press, a spokesperson for the Montana Department of Justice said they are reviewing the ruling and determining the next steps.