The Joseph P. Mazurek Justice Building in Helena which houses the Attorney General’s Office, the Montana Supreme Court and the state law library (Photo by Eric Seidle/ For the Daily Montanan).
Several Montana medical associations asked a U.S. District judge in a lawsuit filed on Wednesday to invalidate recently passed legislation that bars hospitals from requiring employees to be vaccinated, including but not limited to the COVID-19 virus, arguing the law violates both the U.S. and Montana Constitutions.
The suit, filed in Missoula Federal Court, argues that House Bill 702, passed during the recent legislative session with Republican support, unconstitutionally prevents hospitals from guaranteeing a safe environment for patients.
“Immunocompromised and other disabled Montana citizens, such as the patients, are disparately and adversely affected by Montana HB 702 as compared with other similarly situated Montana citizens. For example, immunocompromised patients who receive care in licensed nursing home facilities are entitled to receive treatment only from vaccinated providers, whereas immunocompromised patients who receive care in OPPs and certain hospitals,” the suit says.
Montana is the only state in the country with such a law banning employers from requiring vaccinations of their employees. While the suit was filed in the middle of a resurgence of COVID-19, medical professionals have long said the law is dangerous beyond just the coronavirus as it prevents proof of vaccination for any infectious disease.
“HB 702, passed in the final days of the 2021 Legislative session, directly prohibits physician offices from following long-held evidence-based practices that create the safest environment possible for our patients and employees. This includes the ability to take reasonable mitigation steps if an employee has not been vaccinated for infectious diseases, such as rubella, smallpox, polio, whooping cough, measles, mumps, and others,” read a statement on the lawsuit from the Montana Medical Association. It continues, “HB 702 substantially impacts medical providers in a way we believe was not the intent of the legislation. Therefore, we are challenging it in court to ensure physicians can return to doing what is in the best interest of their patients by preventing the spread of crippling and life-threatening diseases within the very location where medical care is sought.”
Montana reported 1,144 new COVID-19 cases on Thursday with 402 active hospitalizations. While Gov. Greg Gianforte and the Montana Department of Public Health and Human Services have encouraged Montanans to get vaccinated, the state is struggling to keep up with only a 52 percent vaccination rate among the eligible population.
Plaintiffs in the suit include the Montana Medical Association, Five Valleys Urology, Western Montana Clinic and Providence Health & Services. It also includes seven patients that have compromised immune systems.
“Their compromised immune systems prohibit them from participating in the same activities available to vaccinated persons without compromised immune systems,” the suit says. And by reasonable accommodations to the known physical … limitations of an otherwise qualified individual with a disability” HB 702 violates the American Disability Act.
Montana Attorney General Austin Knudsen and Montana Commissioner of Labor and Industry Laurie Esau are the listed defendants. Emilee Cantrell, spokesperson for Knudsen said in a statement, “Attorney General Knudsen will defend the law. He is committed to protecting Montanans’ right to privacy and their ability to make their own health care decisions.”
Earlier this month President Joe Biden directed OSHA to write a rule requiring businesses with 100 or more employees to either mandate workers to get tested or submit to weekly testing. Gianforte said he would fight the rule saying in a tweet it is “gross federal overreach.” Along with the requirements for businesses, Biden announced vaccine requirements for all employees at health care facilities that receive Medicare and Medicaid reimbursement. Montana has around 65 such hospitals employing around 25,000 workers.
The challenged law prevents Montana hospitals and OPPs “from taking those steps necessary to ensure that patients with compromised immune systems are able to utilize the services of those offices and facilities to the same extent as can patients without compromised immune systems,” the suit says. The lawsuit continues, “[HB702] limits the access of patients with compromised immune systems, including the Patients, to OPPs and Hospitals.”
The plaintiffs also argue in the suit the law violates Montanans’ Constitutional Right to a Safe and Healthy Environment. Citing the Montana Declaration of Rights, the suit says, “All persons are born free and have certain inalienable rights. They include the right to a … healthful environment and the rights of … seeking their safety [and] health … in all lawful ways.”
HB702 allegedly violates that right, the suit says, because it “prevents persons with compromised immune systems, such as the patients, from enjoying a healthy environment and securing their right to safe and healthy medical care.”
Additionally, the suit claims that HB702 violates the Occupational Safety and Health Act. “Because Montana HB 702 requires OPPs and Hospitals … to hire employees regardless of their vaccination/immunity status and otherwise impedes them from identifying or controlling the placement of employees based upon vaccination status, they are unable to comply – or are at least impeded from complying – with OSHA,” the suit says.
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