Montana mask sign that will be implemented if House Bill 702 passes (Montana Medical Association).
The U.S. Ninth Circuit Court of Appeals last week struck down a Montana federal judge’s ruling that a bill passed by the 2021 Legislature that allowed healthcare workers not to disclose their vaccination status doesn’t inherently conflict with other federal law, including laws governing workplace safety and the Americans with Disabilities Act.
The ruling reversed Montana federal judge Donald Molloy’s findings that House Bill 702, which allowed employees to not disclose their vaccination status, doesn’t necessarily mean a Montana resident would have to choose between obeying state or federal law as Molloy had previously ruled.
House Bill 702 was passed during the COVID-19 pandemic and made national headlines as lawmakers fought to preserve an individual’s right not to disclose vaccination status even as many employers were struggling to keep a workforce healthy. The group of challengers, which included healthcare organizations and the Montana Medical Association, said that HB 702 left them choosing between state law, which said an employer could not require vaccination in most cases, federal law that called for safe workplaces, and the ADA, which requires reasonable accommodations for residents with disabilities, including those who are immunocompromised.
The three-judge appeals court panel said that choice between an employee’s rights and the obligations of a healthcare setting were hypothetical, and that the state lawmakers had carved out different requirements for healthcare settings, for example, requiring different protocols for hospitals versus private doctor’s offices.
“We conclude that the district court’s high-level findings show at most on ‘the existence of a hypothetical or potential conflict’ between the ADA and HB 702, that is, a perceived conflict that is too speculative on these facts to justify preemption,” the court said. “Plaintiffs have not demonstrated that HB 702 creates a genuine conflict with the ADA in any specific case, much less that HB 702 is facially invalid in all health care settings.”
Circuit courts judges M. Margaret McKeown, who was appointed by President Bill Clinton, and Daniel A. Bress, who was appointed by President Donald J. Trump, sided with the state Legislature.
Those groups which had challenged the bill also said that HB 702 violated the equal protection clause of the U.S. Constitution because it made “unreasonable and baseless” distinctions between different healthcare settings and different providers. But some of those settings and providers overlapped in facilities and their patient groups overlapped, the challengers argued — something the appellate court ultimately rejected. Instead, the appeals court said that the distinctions were logical and tried to address necessary health and safety precautions based on the risk.
The court said that the groups, which included doctors and a medical association, had not encountered any specific requests from patients or employees to make accommodations. And the appeals court said that the groups did not detail whether the plaintiffs had adapted or made accommodations to satisfy concerns, rendering much of the case hypothetical.
Republicans in the Legislature who sponsored and supported the legislation did not comment on the outcome of the case when contacted by the Daily Montanan.