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HR Law Alert – Montana Prohibits Discrimination Based on Vaccination Status

Montana has become the first state to prohibit private employers from discriminating against applicants and employees based on their vaccination status or whether they have an “immunity passport.” An immunity passport is a document or app showing that a person is immune to a disease through vaccination or infection and recovery.

The law carves out exceptions for:

  • Daycare facilities
  • Schools
  • Healthcare facilities if they meet certain conditions (see below)
  • Licensed nursing homes, long-term care facilities, and assisted living facilities to the extent the limitation on discrimination conflicts with guidance from the Centers for Medicare and Medicaid Services (CMS) or the Centers for Disease Control and Prevention (CDC).

In addition, employers can’t require employees to get a vaccine that is authorized under an emergency use authorization (EUA) or is in safety trials. This aspect of the new law is probably only relevant for employers who are exempt from the antidiscrimination protections or who want to “require” employees to get vaccinated but don’t intend to take any action against employees who don’t.

Healthcare Facilities
Healthcare facility employers won’t be considered to have discriminated based on vaccine status if they:

Ask the employee (or volunteer) for their vaccination status for the purposes of determining whether they should create reasonable accommodations to protect the safety and health of others from a communicable disease; and
Actually put those reasonable accommodations in place.

Unfortunately, the science around COVID is still developing—as are new variants of the disease—so knowing what accommodations will protect other people’s health and safety is fraught with uncertainty. Employers with questions about the safety of accommodations should consult with their state and local health authorities.

If an employee refuses to provide their vaccination status, the employer can assume that they’re not vaccinated or immune.

Action Items
Employers in Montana should review their policies and practices to make sure that they’re not treating employees who aren’t vaccinated differently, such as by excluding them from the workplace or requiring them to wear a mask at work if other employees aren’t also required to wear a mask. Note that OSHA and the CDC currently recommend that all employees wear masks at work even if they’re fully vaccinated.

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