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As COVID cases surge, Montana officials say nursing homes can't require vaccinations

Nursing homes and other long-term care facilities in Montana can't require employees or residents to be vaccinated against COVID-19, according to guidance released by the state last week to address lingering questions about a controversial new vaccine discrimination law.

And as the fast-spreading Delta variant has caused COVID-19 cases and hospitalizations among unvaccinated Americans to soar nationally, businesses in Montana also cannot require those who refuse to be vaccinated to wear masks to access their premises — unless they require everyone to wear a mask. Health care facilities are, however, allowed to ask employees, patients and others if they have been vaccinated, and provide "reasonable accommodations," like face masks, for those who are unvaccinated or decline to provide their status.

House Bill 702, sponsored by Rep. Jennifer Carlson, R-Manhattan, sought to bar discrimination against unvaccinated people in Montana by prohibiting government entities and most businesses from requiring that staff, customers or others be vaccinated as a condition of employment or to access the premises. Republicans who supported the bill argued refusing services or employment on the basis of vaccination status is a form of discrimination and a violation of individual freedoms. Some supporters of the bill also questioned the safety of vaccines in general and noted the COVID vaccines were approved under federal emergency use authorizations.

Federal and state agencies, as well as medical experts and organizations from across the country, have emphasized that large-scale trials have shown each of the approved vaccines to be safe and effective in adults.

The bill was aggressively opposed by medical professionals, hospitals and other health care groups during the recent legislative session. Republican lawmakers passed it despite universal opposition by minority Democrats in the House and Senate, and Republican Gov. Greg Gianforte signed it into law in May.

The law has made Montana the only state in the country that prohibits private businesses from requiring employees to get vaccinated, according to the National Academy for State Health Policy, which tracks vaccine-related legislation introduced across the United States. Similar legislation that's been signed into law in other states only applies that mandate to governmental entities.

The new law became effective at the beginning of July. Since then, a sharp uptick in new COVID cases among unvaccinated people in the U.S. has prompted parts of the country to return to restrictions that limit the spread of the virus. Last week, the federal government announced that federal employees will soon be required to either be vaccinated against the disease or be tested regularly for infection.

HB 702 carves out exemptions for vaccines required for attendance in public schools, as well as long-term care facilities, like nursing homes and assisted living centers — but only in the event that the new state law would put them at odds with federal health regulations.

A July 28 memo from Department of Health and Human Services Director Adam Meier noted that “the current regulations and guidance of CMS and CDC strongly encourage COVID-19 vaccination of all residents and staff, but do not mandate it for any party,” referring to the Centers for Medicare and Medicaid Services and the Centers for Disease Control and Prevention.

The letter states that those facilities are still required to “promote and provide vaccination for all residents and staff, encourage vaccination among new admissions, maintain a record of the vaccination status of patients/residents and staff, and encourage vaccination of all visitors.” 

While most of the arguments for the bill focused on emergency vaccines created to combat the COVID-19 pandemic, the new law makes no such distinction, and applies to all vaccines.

The new guidance doesn't address other common vaccinations that health care facilities used to require before Gianforte signed HB 702 into law. In a response to emailed questions last week, DPHHS spokesman Chuck Council declined to say whether other vaccines could be mandated by long-term care facilities under those federal requirements.

DPHHS has also published an FAQ page to help employers and others understand the new law.

Montana State News Bureau

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