Federal judge strikes down Montana vaccine choice law in health settings

A federal judge in the U.S. District of Montana ruled late Friday that Montana’s law barring discrimination based on vaccine status is unconstitutional and preempted by federal law as it applies to healthcare settings, bringing a resolution to a lawsuit filed against House Bill 702 by Montana hospitals, private medical providers, unionized nurses and immunocompromised patients.

The 41-page ruling written by Judge Donald W. Molloy found that, while justified by state attorneys as an anti-discrimination measure, the law effectively restricts health care employers from using vaccination status to “assist with setting workplace policies or vaccination regarding any vaccine-preventable disease.”

Plaintiffs included Providence Health, Western Montana Clinic, Five Valleys Urology, the Montana Medical Association, the Montana Nurses Association and four individual immunocompromised patients. In a statement, Nurse’s Association attorney Raph Graybill called the order “a win for all Montanans, who shouldn’t have to worry about catching an infectious disease when they go to see the nurse or doctor.”

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“The trial showed that attacks on public health and ordinary vaccinations … put Montanans at risk,” Graybill said.

State Attorney General Austin Knudsen and Department of Labor Commissioner Laurie Essau were the defendants in the case.

“We’re reviewing the ruling to determine next steps. Attorney General Knudsen is continuing to fight for the rights of healthcare workers,” said attorney general spokesperson Emilee Cantrell, citing a recent petition Knudsen and 21 other state attorneys general filed to repeal a federal COVID-19 vaccine mandate for health care workers.

The Republican-backed HB 702 was conceived and passed during the 2021 Legislature among debate about the COVID-19 pandemic and how far businesses and the government could go toward compelling vaccination against the virus. During a three-day bench trial in Missoula in October, attorneys for the plaintiffs stressed that the implication of the law for health care facilities went far beyond COVID-19 safety protocols. The law does not distinguish between vaccines, making hospital administrators and workers question how to proceed with policies that require immunization against other diseases, such as measles, mumps, rubella, varicella, tuberculosis, diphtheria, pertussis and hepatitis B.

In his ruling, Molloy said plaintiffs successfully argued that the state law was preempted by the federal Americans with Disabilities Act as well as other federal laws. The plaintiffs, he said, explained that they could not comply with both the required federal standards as well as HB 702, particularly because the law prohibits employers from collecting records of staff members’ vaccination status, making it impossible for health care providers to meet immunocompromised patients’ requests to only be treated by vaccinated staff.

Molloy also found the state law was incompatible with the Occupational Safety and Health Act because vaccine-preventable diseases constitute “recognized hazards in the workplace” and that vaccines are the “single best way” to prohibit the spread of viruses.

“Consequently, health care settings cannot comply with both the federal general duty clause to keep the workplace ‘free from recognized hazards’” and HB 702, Molloy wrote.

The judge found that plaintiffs also successfully argued that the state law, which exempted nursing homes, long term care and assisted living facilities, violates the equal protection clauses in the Montana and U.S. Constitutions because it creates distinctions among similarly situated health care facilities. The attorneys representing the state presented “no rational basis for ‘protecting’ privacy rights in one setting but not the other,” Molloy said, if the point of the bill was to protect against discrimination.

Molloy refrained from ruling on whether HB 702 infringed on the Montana Constitution’s “right to seek health,” citing related litigation ongoing at the state level, including one filed by a private law office challenging the state law.

The order says that the state is generally prohibited from enforcing H.B. 702 in health care settings and barred from using the law to interfere with the Centers for Medicaid and Medicare rule requiring health care workers be vaccinated against COVID-19.

“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,” Molloy said.