Everything you wanted to know about HB702 (but were too afraid to ask)

An employer and business guide to the new law

By: - August 11, 2021 5:29 pm

Healthcare professional in protective gloves holding and organizing a tray of COVID-19 vaccine vials. (Getty Images)

Note: This story was updated on Aug. 24, adding new questions and editing some information for the current situation.

As the Montana Legislature put the finishing touches on its the 67th legislative session, it passed House Bill 702, which banned vaccine requirements for employment and services.

Despite myriad concerns from the medical community and a few conciliatory changes before it was signed, the bill went through not only banned vaccine passports, but made it unlawful to require any vaccines – even the ones which have been around for decades.

The law, backed by the Republican-dominated Legislature and signed into law by Gov. Greg Gianforte, makes Montana an outlier as many states and parts of the federal government rush to push vaccinations as COVID cases surge again with the delta variant. The law doesn’t just apply to the state government or officials, but to many — though not all  —aspects of Montana business and society, creating confusion about what is legal.

The Montana Department of Labor and Industry, in conjunction with the state’s Department of Health and Human Services, has issued some guidance about House Bill 702.

Those resources can be found here.

The Daily Montanan has also reached out to experts and put together this resource for those wanting to know how the new law affects their business.

What does House Bill 702 say?

The text of the bill can be found here. It says it’s illegal to discriminate against a person based on vaccination status and it outlaws immunity passports. The legislation does create some cutouts for health care facilities, and exempts nursing homes and long-term care facilities from compliance with the ban if doing so “would result in a violation of regulations or guidance issued by the centers for medicare and medicaid services or the centers for disease control and prevention. ”

What if other states require immunity passports or proof of vaccination?

Since HB702 is a state law, it has no authority or bearing on what other states require. If you travel to other states or country that require proof of vaccination to travel there, you may have to provide it. While HB702 prohibits requiring immunity passports or proof of vaccination, it does not make them illegal in Montana. In other words, if you’re vaccinated, you may still be issued a vaccine record card. That’s perfectly normal and legal.

Why haven’t I heard about this being used elsewhere?

Montana’s HB702 is the most restrictive measure among the states, by most accounts. While other states, like Florida, have outlawed mask mandates in public school classrooms, or have decided not to require proof of vaccination in some cases, no other state has made it illegal require employers to make accommodations for employees who refuse to share their vaccination status.

Why do I have to have a mask inside an airport if businesses cannot discriminate or require them?

Laws passed by the Legislature only have effect in the state of Montana. Airports and other facilities that are operated or regulated by the federal government follow federal law. President Joe Biden has ordered that all travelers on airplanes and airports must be masked. Recently, that order was extended to the military. Even though Montana has airports and military bases, those are under the control of the federal government and those rules supersede local or state law. In other words, if you go to the VA clinic, masks and proof of vaccination are legal.

 Does this only cover the COVID vaccine?

No, this covers all vaccines, including long-time established vaccines for diseases such as polio, chickenpox, influenza, diptheria, measles, mumps, and whooping cough.

Does this law apply to a private business?

Yes. The law says that if you operate a business that has services, goods, facilities, educational opportunities or health care access, the rule applies to you, regardless of corporate ownership.

Can I require my employees to get a vaccine?

No*

Why is there an asterisk on that no?

For certain employers like the federal government, schools or even nursing homes, that may be a different matter. For all others, it’s likely illegal to require vaccinations. While the law says an employer can’t discriminate against a person who either opts not to get a vaccine or doesn’t want to say, when asked by the Daily Montanan, state officials refused to answer whether it would be considered discriminatory to require all employees or customers to get the vaccine. Montana has always had a religious exemption and an exemption for those who cannot get a vaccine for medical reasons, so it’s unlikely that requiring everyone to get a vaccine would be legal with HB702 in place. However, in the case of masking, it’s permissible under the law to require masking so long as the mandate applies to everyone – employees, customers, visitors alike, because the law is being applied without discrimination.

Can I require my employees to get a vaccine if I require it for everyone?

Uncertain, but probably not legal under HB702.

Can I require my employees to wear a facemask?

Yes, so long as the requirement is for everyone – employees, customers, visitors – to wear a facemask. As long as the masking is put into place equally and without regard to vaccination status. In other words, requiring masks cannot be used to disclose who is vaccinated and who is not.

[Question added on Aug. 24] If my employer is out-of-state but I work in Montana, can it still require a vaccine?

While this question may ultimately be decided by courts, any company doing business with employees living in Montana is subject to the rules of that state. For example, human resources laws vary a bit in each state and employers operating in those states must comply with state laws, even if their headquarters are elsewhere. The law is meant to protect employees, so if an employee lives in Montana, it’s unlikely that an out-of-state employer can require vaccines for everyone. However, a mask mandate would likely be legal so long as it’s required for all employees at all locations.

What happens if someone contracts COVID in my business?

In the unlikely event that a person could prove that COVID was contracted at your business, another law passed during the legislative session gives immunity to businesses where COVID is contracted, unless the business can be shown not to have taken basic precautions or followed public health directives. Since the emergency measures in Montana have expired, and because the Legislature also stripped most public health boards and the governor of the ability to declare emergency measures, like mandatory public masking, it’s unlikely that any business would be found in violation of emergency or public health measures since there are essential none in place at this time.

Can I ask about a vaccination status as an employer?

Yes, an employer can ask about an employee’s vaccine status without breaking the law. However, the employee also has the right, under HB702, to refuse to answer the question without consequence. In that case, it’s OK for the employer to treat that person as if they’re not vaccinated. However, employers are also required to make a reasonable accommodation for those employees.

What does a reasonable accommodation mean?

That depends on the job and the setting. Since reasonable accommodation is not defined, that is something that is likely situation-specific and should be done with the help of a lawyer or human resources professional.

Can I ask about my fellow workers vaccine status?

It is not illegal to ask, but it may well be illegal for your employer to disclose that information, which is considered to be medical information, protected by Article II, section 10 of the Constitution. In other words, it’s not illegal to ask or even to offer it, but don’t expect your boss to tell you who is and who is not vaccinated.

What happens if an employee refuses to answer a question?

If any employee refuses to get vaccinated, even after being asked, or refuses to give his or her vaccination status, then the employer should assume they are not vaccinated and take appropriate safety measures against COVID-19. While there can be no consequence for refusing to share the vaccine status, the employer has the right to treat them as unvaccinated and can make reasonable accommodations for the employee.

Can an employer use prizes or other enticements as a way of encouraging vaccination?

So long as those things are legal and, in the instances of some gifts or cash, reported as income, then nothing in the law or HB702 prohibits an employer from offering an incentive for employees to get vaccinated. However, there can be no consequence for an employee opting not to get vaccinated.

What happens if I choose not to follow this law?

Those who do not follow the law can be subject a finding of discriminatory practice by the Montana Human Rights Bureau. Often complaints investigated and sustained by the bureau are the basis for civil lawsuits.

Can I visit a hospital without being vaccinated?

Yes.  However, hospitals and healthcare centers (even places that perform therapeutic massages or a dentist office) can implement rules in order to protect the vulnerability of certain patients who may be immunocompromised. That is why most hospitals and healthcare systems have continued to require masks, even for those who have already been vaccinated against COVID. The law says that you cannot discriminate, but you can apply a policy to everyone, including masking.  In a section of the bill that specifically addresses health care facilities, it does allow them to “implement reasonable accommodation measures” but those measures are not defined.

Can a nursing home require vaccinations?

Yes. One of the changes made to HB702 was to modify the bill’s language to allow for a different set of rules for nursing care facilities, which are mandated federally.

Can my school district require masks or vaccination?

The law specifically exempts schools and some day-care facilities. The decision on masks and vaccines are usually a matter of local school board control.

On Aug. 22, Billings Public Schools Superintendent Greg Upham reversed his previous decision to begin the school year with masking optional, switching it to mandatory because of a rise in infections, including 10 members of the Skyview football team. Bozeman Public Schools also decided to require masks.

How do you know if your doctor or nurse is vaccinated?

You may not know. It’s not illegal for you to ask your healthcare provider, but they may chose not to answer. Like all health information exchanged between individuals, that’s a matter of personal preference.

Can my doctor or nurse ask me about my vaccine status?

Yes. Nothing in the bill prohibits a person from asking an employee or another person about their vaccine status. The bill makes it illegal to discriminate based upon vaccine status. However, for the purpose of medical treatment it may be necessary for a healthcare professional to ask.

If I am a private property owner, can I require masks or vaccination proof?

The law doesn’t regulate private residential property. In other words, what you require of guests in your home is your choice. However, it would be illegal not to rent to a person based on vaccine status, if you’re a landlord. And even if you are a private property owner with a business, that business – if it provides goods, services, facilities, licensing, educational opportunities, or health care access – must treat everyone equally. Masks are fine if they’re required for everyone.

If you have other questions, please send them along to the Daily Montanan. We will do our best to update this list and keep answering questions. For questions, write to [email protected]

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Darrell Ehrlick
Darrell Ehrlick

Darrell Ehrlick is the editor-in-chief of the Daily Montanan, after leading his native state’s largest paper, The Billings Gazette. He is an award-winning journalist, author, historian and teacher, whose career has taken him to North Dakota, Minnesota, Wisconsin, Utah, and Wyoming. With Darrell at the helm, the Gazette staff took Montana’s top newspaper award six times in seven years. Darrell's books include writing the historical chapters of “Billings Memories” Volumes I-III, and “It Happened in Minnesota.” He has taught journalism at Winona State University and Montana State University-Billings, and has served on the student publications board of the University of Wyoming.

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