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State explains how to comply with Montana's vaccine discrimination law

by ALEX SAKARIASSEN
| August 13, 2021 7:00 AM

Montana Free Press

The Montana Department of Labor and Industry this week offered guidance to government agencies and private businesses on how to adhere to a new state law barring discriminating against people on the basis of vaccination status.

The agency's guidelines also outline the complaint process for incidents involving such discrimination.

"This guidance will help Montana employers and businesses stay in compliance with the law and help ensure that Montanans do not face discrimination due to their vaccine status," Montana Commissioner of Labor and Industry Laurie Esau said in a statement announcing the guidelines.

State lawmakers approved House Bill 702 in late April after weeks of contentious debate during which several Montana nurses claimed their employer was requiring them to get the COVID-19 vaccine.

The bill allows public schools to continue requiring vaccinations among students, and was amended by Gov. Greg Gianforte to grant exemptions for nursing homes and long-term care and assisted-living facilities. Gianforte added the provisions in consultation with the bill's sponsor, Rep. Jennifer Carlson, R-Manhattan, in response to concerns that compliance with HB 702 would force such facilities to violate federal health regulations.

The amendment also allowed hospitals to ask about their employees' vaccination status, though employees are under no legal obligation to respond. Gianforte signed HB 702 into law on May 7.

Though much of the testimony in support of HB 702 was tied to concerns about COVID-19 vaccines, the law applies to all vaccines, including those against influenza, whooping cough and measles.

According to DLI's guidelines, government agencies and private employers are barred from requiring proof of vaccination as a condition of receiving goods, services, public assistance or employment. Those entities can still ask individuals about their vaccination status, but individuals can decline to answer. Any violation of HB 702 is considered discrimination under the Montana Human Rights Act.

The guidelines also speak to the question of vaccination incentives. As COVID-19 vaccination rates began to slow down across the country this spring, some agencies and private companies offered rewards to vaccine seekers.

Ohio made headlines for entering vaccine recipients in lotteries for $1 million cash prizes and four-year college scholarships, and President Joe Biden this week suggested that state and local governments encourage vaccination by using American Rescue Plan Act funds to pay recipients $100.

In Montana, local incentives ranged from free beers to $50 in cash from the RiverStone Health Foundation, the nonprofit partner of Yellowstone County's RiverStone Health.

According to DLI, such incentives are allowed under HB 702. But agencies and employers must comply with federal discrimination laws, meaning they can't offer inducements that are substantial enough to be considered coercive.

DLI did not respond Friday to requests for clarity about what incentives might be considered coercive.

Complaints about HB 702 violations will follow the same process as other discrimination complaints under the Montana Human Rights Act and will be handled by the Montana Human Rights Bureau.

The law does not outline specific consequences or remedies for violations, but if DLI determines that a case of vaccine-based discrimination did occur, the agency has wide discretion in crafting a remedy.