UPDATED: Everything you still may want to know about HB702 (but were too afraid to ask)

An employer and business guide to the new law

By: - January 26, 2022 1:29 am

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

Note: This story was originally published on Aug. 11, 2021 and has been updated several times to reflect court decisions and guidance on best practices. The article was re-written on Jan. 26, 2022 to reflect U.S. Supreme Court and other decisions that have impacted Montana workers. 

As the Montana Legislature put the finishing touches on its the 67th legislative session almost a year ago, 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 that went through not only banned vaccine passports, but made it unlawful to require any vaccine.

The law, backed by the Republican-dominated Legislature and signed into law by Gov. Greg Gianforte, makes Montana an outlier as many states . However, since its passage, other states, like Iowa and Florida, have enacted portions that mirror Montana’s requirement even as the federal government rushed to push vaccinations, masking and social distancing.

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.

Haven’t courts struck down President Joe Biden’s mandates?

Yes and no. Biden has issued three notable mandates — one to all federal workers, one to all healthcare facilities receiving federal aid via Medicaid and Medicare, and one to all large employers (having more than 100 employees. Let’s take a look at each, all of which have been challenged in federal courts.

A federal appeals court has paused action on a federal employee mandate, leaving the issue likely to be decided by the Supreme Court. The challenge is whether the Biden administration can require all federal employees to be vaccinated. A U.S. Fifth Circuit Court of Appeals doubts it, but the issue will likely head to the Supreme Court for the final decision.

Through the Occupational Health and Safety Administration (OSHA), Biden also ordered all large employers (with more than 100 employees) to vaccinate. Montana was among the states that challenged this, and Biden’s order conflicted with state law, setting up an inevitable showdown. However, before that could happen, the order was challenged and made its way to the U.S. Supreme Court which ruled that the President doesn’t have the power to mandate the vaccine for private business — but Congress could if it wanted to. Therefore, Montana’s HB 702 applies, which says that it is illegal to discriminate based on vaccine status and it’s illegal to require it for employees.

Finally, the U.S. Supreme Court decided it was legal for the Biden administration to use the mandate to require any healthcare facility or doctor who receives payment through CMS (Medicaid and Medicare) to have all employees vaccinated or risk having funding cut. For most hospitals and large healthcare organizations, the possibility of losing federal funding would be devastating and financially crippling, so if you work in healthcare, such a mandate may be legal.

Does HB 702 only cover the COVID vaccine?

House Bill 702 was crafted to address the COVID crisis. While the language of the bill says that it’s illegal to discriminate against any employee due to vaccine status, the specific language of the bill in Section 4 clarifies that it’s illegal to require vaccines that are “allowed under an emergency use authorization for any vaccine undergoing safety trials.”

So, that means it’s illegal to discriminate on any vaccine status which may apply to older vaccines; and, it’s illegal to require a vaccine which is undergoing safety trials, for example the COVID vaccines being manufactured by Pfizer, Johnson & Johnson and Moderna.

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.

There are exceptions that have been created via the federal government in healthcare, just like the federal government has required vaccinations for its employees at places like veterans’ clinics. The federal government says that any facility receiving CMS reimbursement, which is Medicare/Medicaid, must have all employees vaccinated.

HB 702 also allowed local school districts to make the decision on masking, leaving some schools in the state to be masked while others are not.

What does the CMS requirement mean?

The federal government, which funds Medicare and Medicaid, puts rules or conditions upon those reimbursements. Often, that’s in a form of reimbursement (in other words, it will only pay so much for certain types of procedures). However, it can also require healthcare systems to adhere to certain standards if they want reimbursement. Most hospitals, doctors and healthcare businesses rely on CMS funding for some portion of its budget. Many rural healthcare systems in Montana have almost their entire budget made from CMS reimbursement.  So while the employers/businesses still have the option of risking the loss of the funding, the reality is that most — if not all — could not afford the financial hit.

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, healthcare workers 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, without exception, 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 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.

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.

Can I be required to get a regular COVID test if I am unvaccinated?

Yes, so long as the rule applies to everyone regardless of vaccination status. In other words, if you test one employee you have to test them all. However, employers cannot discriminate when it comes to testing, meaning that even if an employee is vaccinated, they must still be tested. It cannot be used to single out unvaccinated employees.

Can my employer require me to pay for testing? 

That’s not addressed by the law itself.

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.

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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