Montana Makes Vaccination Status a Protected Class

Author: Emily Scace, Brightmine Legal Editor

May 18, 2021

Amid the debate surrounding COVID-19 vaccinations and whether employers can or should mandate them for employees, Montana has enacted a law that classifies vaccination status as a protected characteristic under the state's antidiscrimination law. The law's antidiscrimination provisions take effect immediately and apply to all employers in the state.

Citing concerns for medical privacy, the first-of-its-kind law makes it an unlawful discriminatory practice for an employer to refuse to employ or otherwise discriminate on the basis of an individual's vaccination status or possession of an immunity passport. However, employers are not prohibited from recommending that employees receive a vaccine.

Immunity passport is defined as a document, digital record or software application indicating that a person is immune to disease, either through vaccination or through infection and recovery. Vaccination status means an indication of whether a person has received one or more doses of 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 United States are being administered under an EUA, although Pfizer and its partner BioNTech have begun the process of seeking full approval for their vaccine, and Moderna is expected to follow suit shortly.

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, as long as the employer actually implements such reasonable accommodations.

The Montana law reflects an approach that diverges from federal Equal Employment Opportunity Commission (EEOC) guidance. The EEOC has stated 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.