The Montana Capitol (Photo by Darrell Ehrlick of the Daily Montanan).
Since her boss signed House Bill 702, which barred Montana employers from requiring employees to be vaccinated, Lt. Gov. Kristen Juras has been directing the state’s Department of Labor to send “educational” letters to businesses that have been reported by constituents.
Many of those letters demanded a written response within seven days and included language that violating the new law could lead to criminal penalties.
Those letters were sent to healthcare facilities, a conference for cancer survivors, Big Sky Resort and even the U.S. Ninth Circuit Court of Appeals.
How Montana’s Department of Labor and Industry and the state’s Human Rights Bureau have enforced the new controversial law was detailed in a raft of new legal filings in federal district court, where the law, passed by the 2021 Legislature, has been challenged as a violation of due process, as well as contradictory to federal law.
Department of Labor Chief of Staff John Elizandro told attorneys in the case that the state was sending letters with Commissioner Laurie Esau’s authority and signature — a new procedure. The Montana Human Rights Bureau is the official state agency charged with investigating human rights complaints, and that includes vaccination discrimination, created by HB702. However, Elizandro described a separate process developed by the department that entailed collecting complaints that were called into the department, as well as coordinated with the Governor’s Office.
“We would become aware from reports from individuals who contacted, from the legislators who contacted us, from the Governor’s Office, if they received a constituent complaint, or if we just became aware of it through seeing it in the news media,” Elizandro said. “I know that (the Governor’s Office) share the department’s interest in ensuring that businesses, employers, and public accommodations were aware of it.”
Letters would be sent to businesses where employees had complained, and in one case, Juras herself reported the violation.
Juras reported the Ninth Circuit was holding a judicial conference at Big Sky. The conference’s registration materials said that attendees must be vaccinated.
“After becoming aware of the conference, we shared the specific statutes (in Montana law) to educate them and ensure they were aware of House Bill 702,” Elizandro said. “The lieutenant governor contacted me and indicated that attorneys who had wished to attend the conference had contacted her with concerns about the requirement.”
The department, though, appears to have gone even a step further than normal for the conference, warning, “The conference website, registration form, and all associated materials must be revised immediately to conform to Montana law and remove any references to requirements of vaccination or proof of vaccination as a condition of attendance.”
The letter from Labor Commissioner Laurie Esau also directed them to “let my office know once these changes have been made and your organization is complying with state law.”
Elizandro testified that Juras played an active part in enforcement of the vaccination law for more than a year-and-a-half.
“The lieutenant governor played an active role in the department’s outreach and education efforts,” Elizandro said. “And was helpful in identifying employers that may not have been aware of House Bill 702.”
Samples of the “educational letters” were included as part of the court file, and the letters included guidance from Gov. Greg Gianforte’s office and said, “COVID-19 vaccine mandates, including as a condition of employment, are illegal in Montana, and state law makes clear that contract terms that violate Montana public policy are unenforceable. As such, President Biden’s order is unenforceable.”
The “educational letters” also order the recipients to respond in writing within seven days and warns, “continued discrimination against employees based on vaccination status may constitute a willful violation of Montana law subject to criminal penalties.”
Nurses, doctors claim constitutional violations
As the court documents have shed light on how the Department of Labor as well as Gianforte’s office have enforced the controversial law, they also demonstrate the thorny legal position many medical and healthcare organizations are faced with when having to choose between federal regulations and law, and state law.
Both the Montana Medical Association, which represents doctors, and the Montana Nurses Association have filed briefs in the case, and both are named as plaintiffs. While both oppose the law and have legal arguments that overlap, both demonstrate the uncertainty the sweeping law has introduced for practitioners, business owners and nurses.
The nurses’ legal claims center on the state and federal equal protection clause, saying the new law treats nurses differently depending on what type of medical setting employs them. The doctors, many of whom own or manage their own practices, say Montana’s law makes it unable for them to comply with the Americans with Disabilities Act.
Before House Bill 702 was passed, it was vetoed, amended and then passed again by the Montana Legislature. While many medical groups, including the nurses, spoke out about concerns with the new law, Gianforte ultimately signed it, after the lawmakers had made adjustments for different medical settings that wouldn’t conflict with federal regulations during the COVID-19 pandemic.
One of those changes was that certain medical facilities, primarily nursing homes, could still require vaccinations. The state law was changed to reflect that, but other facilities, notably hospitals and doctors’ offices, could not require employees, including nurses and doctors, to get all vaccinations, ranging from influenza shots to more common vaccines like measles, polio and pertussis.
“(HB 702) violate state and federal equal protection guarantees because they arbitrarily exempt certain facilities,” the recently filed brief states. “Nurses in exempted facilities like nursing homes face the same workplace risks from vaccine-preventable disease as other healthcare settings.
“Montana nurses face the same recognized workplace risk from the spread of vaccine-preventable disease whether they work in Exempted Facilities or somewhere else, like a hospital or an (advance practice) nursing clinic.”
The doctors, meanwhile, argue that they’re required to make accommodations for people whose conditions qualify under the ADA, including nurses.
“The ADA requires healthcare settings to provide reasonable accommodations to these nurses,” the court filings said.
Doctors say that they have a federal legal responsibility to provide safe environments for nurses and patients, especially those who have known medical issues under the Americans with Disabilities Act. However, the new state contradicts those.
“Because they conflict, the ADA preempts (HB702) under the Supremacy Clause and the state policy yields,” the court documents said.
The court documents also show that the Humans Rights Bureau has found discrimination under the new law 25 times since its adoption, and some of those findings are against hospitals.
“The (Human Rights Bureau) testified that it could be unlawful discrimination if a physician office removed an unvaccinated individual from having direct patient care, based on the individual’s vaccination status,” the court documents said. “In another claim before the HRB, (it found) reasonable cause to believe discrimination … had occurred where an event scheduled for cancer survivors prohibited unvaccinated individuals to attend in person, even though it allowed them to attend the conference remotely.”
Yet the court documents also point out that the federal Equal Employment Opportunity Commission said that when an “immunocompromised employee requests a reasonable accommodation based on a concern of heightened risk of severe illness from a COVID-19 infection, the employer must explore reasonable accommodations that must be provided absent undue hardship.”
Adding to the confusion, the Montana Department of Public Health and Human Services has “testified that hospitals, when faced with the question of how to comply with (HB702) and the CMS COVID-19 vaccine mandate should follow the CMS COVID-19 mandate.”
“It is undisputed that some individuals with disabilities should only be treated by vaccinated healthcare workers – thus requiring different treatment of healthcare workers based upon vaccination status,” the attorneys said.
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