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UPDATE: 12/11/2022 - On 12/9/2022 a federal judge ruled that HB 702, the law barring discrimination based on vaccine status is unconstitutional and preempted by federal law as it applies to health care settings, bringing a resolution to a lawsuit filed against House Bill 702 by Montana hospitals, private medical providers, unionized nurses and immunocompromised patients. See news article here
UPDATE: 5/7/2021 - HB 702 was transferred to the Governor on 5/4/2021 and signed on 5/7/2021. https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf
The signed and enacted version of HB 702 in Montana, https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf has a lot good in it, and advances NVIC’s mission in critical areas like protection for most employees and right of access not being limited based on vaccination status, but not all in the bill is good.
Section 1 (1) is great and we fully support it. It adds protection for those not wanting to be vaccinated for any vaccine including COVID-19 in many areas.
(a) a person or a governmental entity to refuse, withhold from, or deny to 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;
(b) an employer to refuse 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; or
(c) 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.
Section 1 (3) (b) has some exceptions that are a problem. This law lets health care facilities off the hook to still discriminate and not be penalized for discrimination even though their behavior is discriminatory and treats healthy people like they are sick just because they aren’t vaccinated. This is wrong. Under these exceptions, health care facilities can require employees or patients or visitors who are not vaccinated or immune to divulge their private vaccination status and based on that information, implement “reasonable” accommodation measures. There are no definitions or limits for what those reasonable accommodations are. We have been contacted by health care workers who have been banned from seeing patients under what the facility considers as a reasonable accommodation which is not reasonable at all. Permitting a facility to require visitors to divulge their vaccination status to have access to visit family or friends is discrimination but this law permits it. Vaccines don’t work for everyone and not everyone not vaccinated gets sick when exposed to a vaccine targeted illness.
(b) A health care facility, as defined in 50-5-101, does not unlawfully discriminate under this section if it complies with both of the following:
(i) asks an employee to volunteer the employee’s vaccination or immunization status for the purpose of determining whether the health care facility should implement reasonable accommodation measures 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 vaccination or immunization status to the health care facility for purposes of determining whether reasonable accommodation measures should be implemented.
(ii) implements reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune to protect the safety and health of employees, patients, visitors, and other persons from communicable diseases.
Section 2 is also problematic throwing residents of a nursing home or long-term care or assisted living facility under the bus eliminating all protections in the bill when compliance would result in a conflict with guidance or regulations from the Centers for Disease Control or the centers Medicare and Medicaid services. States should be standing up to the CDC because as we have seen throughout this COVID-19 period, their recommendations are often justifiably challenged.
Note that Section 1 (2) exempts the protections in section one of the bill from applying to schools or day care.
This is the first state to codify discrimination protections to most employees and for all vaccines, not just COVID-19.
UPDATE: 5/1/2021 - The Governor's amendments were approved by the House and the Senate and the bill was sent to enrolling on 4/29/2021. The enrolled version was made available on 4/30/2021 - https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf - enrolled 4/30/2021
UPDATE: 4/28/2021 - HB 702 was returned with the Governor's proposed amendments on 4/28/2021. The Governor amendments can be viewed here - https://leg.mt.gov/bills/2021/AmdHtmH/HB0702GovAmd.pdf The amended bill has passed the House and is scheduled for 2nd reading in the Senate on 4/29/2021.
https://helenair.com/news/state-and-regional/govt-and-politics/gov-issues-amendatory-veto-of-vaccine-bill-legislature-will-consider-changes/article_a716fa2b-3e16-5dd2-a07e-b25aeab70346.html - news article
UPDATE: 4/27/2021 - HB 702 passed both the House and the Senate and was sent for enrollment on 4/26/2021.
UPDATE: 4/22/2021 - The current version of HB 702 has removed the section in the bill that NVIC could not support and NVIC Advocacy supports HB 702 as currently written on 4/22/2021. https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf - HB702.4
UPDATE: 4/2/2021 - HB 702 passed the full House as amended on 4/6/2021 and is scheduled for a hearing in the Senate Health, Safety and Human Services Committee on 4/12/2021 at 3:00 PM. agenda
The current version - https://leg.mt.gov/bills/2021/billpdf/HB0702.pdf - still includes:
(2) A PERSON, A GOVERNMENTAL entity, or an employer MAY REQUIRE A VACCINE AS LONG AS THE PERSON, GOVERNMENTAL entity, or ALLOWS AN EXEMPTION for a person to decline to be vaccinated based on medical or religious grounds.
UPDATE: 4/1/2021 - There is a proposed amendment for HB 702. This amendment changes the wording of allowing government entities or employers to require vaccines as long as medical and religious exemptions are allowed. https://leg.mt.gov/bills/2021/AmdPublicWeb/HB0702.001.002.pdf This amendment does not change NVIC Advocacy's position on the bill.
UPDATE: 3/30/2021 - HB 702 is scheduled for a hearing in the House Judiciary Committee on 3/31/2021 at 8:00 AM in Room 137. http://laws.leg.mt.gov/legprd/LAW0240W$CMTE.ActionQuery?P_COM_NM=(H)+Judiciary&P_ACTN_DTM=&U_ACTN_DTM=&Z_ACTION2=Find&P_SESS=20211
This bill is sponsored by Rep. Carlson. This bill is well intended, but would allow a government entity or an employer to mandate vaccines or any policy if the government entity or the employer includes exemptions for a person to decline to be vaccinated based on medical or religious grounds. NVIC Advocacy does not support vaccine mandates or discrimination against those who choose not to be vaccinated based on reasons other than medical or religious grounds.
This bill would establish the following new section:
NEW SECTION. Section 1. Discrimination based on vaccination status or possession of immunity passport prohibited -- definitions. (1) It is an unlawful discriminatory practice for:
(a) a person or a government entity to refuse, withhold from, or deny to 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;
(b) an employer to refuse 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; or
(c) 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.
(2) A government entity or an employer does not unlawfully discriminate in violation of this section if any vaccination policy set forth by the government entity or the employer includes exemptions for a person to decline to be vaccinated based on medical or religious grounds.
(3) As used in this section, the following definitions apply:
(a) "Immunity passport" means a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery.
(b) "Vaccination status" means an indication of whether a person has received one or more doses of a vaccine.
http://laws.leg.mt.gov/legprd/LAW0210W$BSIV.ActionQuery?P_BILL_NO1=702&P_BLTP_BILL_TYP_CD=HB&Z_ACTION=Find&P_SESS=20211 - text, status and history for HB 702
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