A Montana law prohibiting discrimination based on vaccination status now is in effect for assisted living communities and healthcare settings in the state after an appeals court reversed a lower court decision that prevented it from being enforced in the settings.
Prompted by the COVID-19 pandemic but not limited to COVID vaccinations, HB 702 makes it an “unlawful discriminatory practice” to deny services, healthcare access or employment opportunities based on someone’s vaccination status. The law already was in effect for many private businesses and employment settings.
Assisted living communities, nursing homes and other residential long-term care settings would remain exempt from the law if compliance would result in a violation of regulations or guidance from the Centers for Disease Control and Prevention or the Centers for Medicare & Medicaid Services. Healthcare facilities as defined under the law include residential care facilities — including assisted living communities — skilled nursing facilities, home health agencies, hospices, hospitals and other facilities that provide health or medical services or nursing, rehabilitative or preventive care.
The legislation, passed in 2021, was challenged by providers and people with compromised immune systems, who sought to have the law invalidated in all healthcare settings. They argued that the law was preempted by the Americans with Disabilities Act and the Occupational Safety and Health Act and that it violated the Equal Protection Clause of the 14th Amendment.
The plaintiffs who brought the lawsuit held that the law prevented employers from knowing employees’ vaccination status and said that they were primarily concerned about unvaccinated healthcare workers infecting coworkers and residents or patients, especially those who are immunocompromised.
A Montana US District Court initially ruled in 2022 the law was unconstitutional and that it conflicted with federal law, and that decision prevented it from going into effect in healthcare settings. The judge issued a permanent injunction against enforcement of the law in healthcare settings.
In an Oct. 9 decision, however, the US 9th Circuit Court of Appeals reversed the district court decision and vacated the injunction, allowing the law to go into effect in healthcare settings. The appellate court held that neither the ADA nor the OSH Act preempted HB 702 in healthcare settings. The three-judge panel found that the arguments, at most, supported a “hypothetical or potential conflict,” which they said was “insufficient” to show that a real conflict exists between state and federal statutes.
The law allows assisted living providers and other healthcare employers to ask employees to volunteer their vaccination status to determine whether reasonable accommodations must be made to protect the safety and health of employees, residents, patients, visitors and others. Employees who decline to share their vaccination status can be considered unvaccinated for purposes of determining reasonable accommodation measures.
