Vaccination Status & Immunization Status

Montana House Bill 702

Governor Greg Gianforte signed Montana House Bill 702 into law on May 7, 2021.  The bill became effective immediately upon signing.  This law prohibits discrimination based on a person’s vaccination status or possession of an immunity passport.  In essence, an individual’s vaccination status is a protected category.

Definitions:

• “Immunity Passport” means a document, digital record or software application indicating a person is immune to a disease, either through vaccination or infection and recovery.
• “Vaccination Status” means an indication of whether a person has received one or more doses of a vaccine.

Per the Act, below are items considered discriminatory:

• A person or governmental entity refusing, withholding from, or denying a person any local or state services, goods facilities, advantages, privileges, licensing, educational opportunities, health care access, or employment opportunities based on the person’s vaccination status or whether the person has an immunity passport;
• An employer refusing employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition or privilege of employment based on the person’s vaccination status or whether the person has an immunity passport;
• A public accommodation to exclude, limit, segregate, refuse to serve, or otherwise discriminate against a person based on the person’s vaccination status or whether the person has an immunity passport.

Exemption to the Act:

• A licensed nursing home, long-term care facility, or assisted living facility is exempt from compliance during any period of time that compliance would result in violation of regulations or guidance issued by the centers for Medicare and Medicaid services or the Centers for Disease Control and Prevention.

Additional notes from the Act:

• This does not apply to vaccination requirements set forth for schools or day-care facilities.
• A person, governmental entity, or an employer may recommend that an employee receive a vaccination.
• A health care facility does not discriminate if it complies with the following:
  • Asks the employee to volunteer the employee’s vaccination status or immunization status for the purpose of determining whether the health care facility should implement reasonable accommodations to protect the safety and health of employees, patients, visitors and other persons from communicable diseases.  A health care facility may consider an employee to be nonvaccinated or nonimmune if the employee declines to provide the employee’s status for purposes of determining whether reasonable accommodations should be implemented.
  • The health care facility implements reasonable accommodations for employees, patients, visitors and other persons not vaccinated or not immune to protect the safety and health of employees, patients, visitors, and other persons from communicable diseases.
• An individual may not be required to receive any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials.

So, what does all this mean?  Employers can still recommend that employees get vaccinated.  Likely, not all employees will choose to vaccinate or are able to receive a vaccination due to medical or religious reasons.  Employers will want to stay flexible in the workplace and be ready to work with employees on a case-by-case basis.  Reasonable accommodations may need to be explored. 

It would be good practice to continue to follow guidelines that have been in place since March 2020.  Practices to continue may include, but are not limited to:

• Asking employees to not come to workplace when feeling ill.
• Consistently washing/sanitizing hands.
• Covering coughs/sneezes.
• Physical distancing when possible.
• Encouraging/allowing remote work when feasible/possible.

Members of Associated Employers may call the hotline at 406.248.6178 to visit through scenarios. Finally, if the employer has concerns about their workplace rights, seeking legal counsel for guidance is always an option.