On December 9, 2022, a federal judge in Montana permanently blocked enforcement in healthcare settings of a first-in-the-nation law that had prohibited discrimination in employment and the provision of services based on vaccination status—including vaccination against COVID-19—finding the law is unconstitutional and preempted by federal law.
In the decision in Montana Medical Association v. Knudsen, U.S. District Judge Donald Molloy permanently enjoined the state from enforcing Montana Code Section 49-2-312, in healthcare settings and “as it relates to the COVID-19 vaccine against all health care facilities and individual practitioners and clinics” subject to the Centers for Medicare and Medicaid Services (CMS) COVID-19 requirement that health care facilities ensure their workers are vaccinated as long as the rule is in place.
The ruling makes permanent a preliminary injunction issued in the case in April 2022. In the permanent injunction decision, the judge stated that the “public interest in protecting the general populace against vaccine-preventable diseases in health care settings using safe, effective vaccines is not outweighed by the hardships experienced to accomplish that interest.”
In May 2021, Montana passed House Bill 702, the first jurisdiction in the United States to recognize an individual’s vaccination status as a protected category. The law further prohibited employers from requiring employees to disclose their immunization status and barred employers from requiring employees to possess an “immunity passport,” which the law defined as “a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery.”
The law exempted certain medical facilities—licensed nursing homes, long-term care facilities, or assisted living facilities—if compliance would result in the facility violating regulations or guidance from the CMS or the U.S. Centers for Disease Control and Prevention (CDC).
The Montana Medical Association and other medical groups filed suit against Montana Attorney General Austin Knudsen and Montana Commissioner of Labor and Industry Laurie Esau, alleging that the law conflicts with the federal COVID-19 vaccination requirement from the CMS that covered medical facilities ensure their workers are fully vaccinated or risk losing Medicare and Medicaid reimbursements.
Preemption and Unconstitutionality
The district court judge agreed with the plaintiffs that the Montana law is preempted by the Americans with Disabilities Act (ADA), which prohibits covered employers from discriminating on the basis of a disability by failing to provide reasonable accommodations, and the Occupational Safety and Health (OSH) Act, which requires employers to provide a workplace that is free from “recognized hazards.”
Regarding the ADA, the judge stated that the Montana law’s exception allowing health care facilities to ask employees to “volunteer” their vaccination status and to consider those who decline to be unvaccinated, was not sufficient to avoid a conflict with the ADA’s accommodation process. That exception “only protects those who are not vaccinated or immune” and “does not allow for accommodations to be made for persons who have a disability,” the judge stated.
The judge further found that the law conflicts with the OSH Act, stating that the plaintiffs had “proved that vaccine-preventable diseases constitute recognized hazards in the workplace” and that the law “significantly impacts the requisition of critical knowledge concerning risk assessment in those health care settings from protecting the workplace against such a hazard.”
Finally, the judge found that the law was unconstitutional under the Equal Protection Clause of the U.S. Constitution because it treated exempted medical facilities differently from nonexempted facilities. According to the decision, the stated purpose of the law was to “prevent discrimination based on actual or perceived vaccination and immunity status,” but instead, the law “places an individual’s vaccination choice on an elevated dais of importance compared to the public health and safety concerns normally linked to the exercise of the state’s police power.”
The ruling permanently blocks the enforcement of the Montana law’s prohibition on certain medical facility employers from discriminating in employment based on vaccination status. While the injunction is limited to health care settings, the court’s findings that the law conflicts with the ADA could provide the basis for expanding the injunction to other contexts. Montana employers and other entities subject to CMS regulations may want to review vaccination policies with consideration to the permanent injunction. Outside of Montana, the ruling may provide guidance for how other courts will view similar disputes between conflicting guidance on the ongoing COVID-19 pandemic.
Ogletree Deakins will continue to monitor and report on developments with respect to the COVID-19 pandemic and will post updates in the firm’s Coronavirus (COVID-19) Resource Center as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.