Montana has enacted a law that classifies vaccination status as a protected characteristic under the state’s antidiscrimination law. The law is effective immediately.
The law makes it unlawful for an employer to refuse to employ or otherwise discriminate based on an individual’s vaccination status or possession of an immunity passport. However, employers are not prohibited from recommending that employees receive a vaccine.
In addition, Montana employers may not require employees to receive any vaccine whose use is allowed under an emergency use authorization (EUA) or that is undergoing safety trials. All three COVID-19 vaccines currently in use in the US are being administered under an EUA, although Pfizer (its partner BioNTech) and Moderna have begun the process of seeking full approval for their vaccine.
Exceptions apply to nursing homes, assisted living and long-term care facilities, as well as to existing vaccination requirements for schools and day-care facilities. Health care facilities may ask employees to volunteer their vaccination status for the purpose of determining whether reasonable accommodations are necessary to protect the safety and health of other employees, patients, visitors and other individuals from communicable diseases, if the employer implements such reasonable accommodations.
The Montana law reflects an approach that diverges from federal Equal Employment Opportunity Commission (EEOC) guidance, in which the EEOC states that employers may generally require employees to receive COVID-19 vaccines and impose consequences on those who refuse as long as employees can request reasonable accommodations for reasons related to disability or religious beliefs.