In a lawsuit filed Wednesday, the Montana Medical Association, a Missoula hospital, medical clinics and individuals with compromised immune systems seek to overturn a law passed earlier this year by Republican legislators that bars employers, including hospitals, from requiring their employees be vaccinated.
House Bill 702 was signed by Republican Gov. Greg Gianforte earlier this year. It became the only law in the country to ban employers from requiring their employees to be vaccinated, with a carve-out for long-term care facilities but not hospitals or other medical settings.
The current surge of COVID-19 cases in Montana is driven mostly by the unvaccinated. According to a briefing given to Gianforte on Wednesday, 87% of hospitalizations and 79% of deaths between April 1 and Sept. 17 have been for those who aren't vaccinated. Hospitals around the state are overwhelmed with patients, with one implementing rationed care.
The state's vaccination rate is lagging the country as a whole, sitting at 52% of the eligible population. While Gianforte and his state health department director have encouraged people to speak with their doctors about getting vaccinated, press releases and public statements also include the clarification the state will not mandate vaccines.
The state reported 1,326 new cases Wednesday and the briefing said cases grew 44% over the week prior.
The lawsuit, filed in federal court in Missoula, is based on claims the new law violates protections in the U.S. Constitution for those with disabilities and work safety standards. The filing also claims the law violates the Montana Constitution, specifically the inalienable right to a “clean and healthful environment” and the state’s obligation to maintain that environment. It also makes claims of violating equal protection clauses in both constitutions.
The suit seeks to have the law declared invalid and unenforceable and have the court issue a permanent injunction.
It was filed by the Montana Medical Association; Five Valleys Urology, Providence Health & Services and Western Montana Clinic, all in Missoula; and Pat Appleby, Lois Fitzpatrick, Joel Peden, Diana Jo Page, Wallace L. Page and Cheyenne Smith, all people with chronic health conditions. The are represented by Justin Cole and Katheryn Mahe of Garlington, Lohn and Robinson in Missoula.
In a statement Thursday, the Montana Medical Association said the law has wide-ranging effects that go beyond the current pandemic.
"As written, HB 702 jeopardizes physicians’ ability to maintain best practices now in place for protecting patients and staff from vaccine-preventable diseases," the statement read.
It was filed against Attorney General Austin Knudsen and Montana Commission of Labor and Industry Laurie Esau.
Knudsen's spokesperson Emilee Cantrell said in response the the filing the office will defend the law.
“Attorney General Knudsen ... is committed to protecting Montanan’s right to privacy and their ability to make their own health care decisions," Cantrell said in an email Thursday.
A spokesperson for Gianforte on Thursday said while the governor's office generally doesn't comment on pending litigation, "ultimately what this comes down to is that no Montanan should be discriminated against based on his or her vaccination status. While we will not mandate vaccination in Montana, the governor will continue encouraging Montanans to talk with their doctor or pharmacist and get vaccinated, because vaccines are safe, they work, and they can save lives."
State Rep. Jennifer Carlson, a Republican from Manhattan, said she'll continue to defend the law.
"I continue to stand up for the rights of every Montanan to make personal vaccination choices for themselves and their children," Carlson said Thursday evening. "Discrimination is wrong. Montanans are overwhelmingly opposed to medical mandates that impact their ability to participate in society. That’s not how America works."
Unvaccinated medical workers are more likely to spread infections including not just COVID-19, but other diseases that can be prevented through vaccination like Hepatitis A and B, pertussis, measles and influenza.
The lawsuit says House Bill 702 restricts the ability of doctors and hospitals to use their professional judgement to determine conditions of employment based on vaccine status and prevents hospitals from “appropriately addressing” an unvaccinated employee, contractor or prospective employee.
While HB 702 requires hospitals to provide accommodations to those who are not vaccinated, there are sometimes not reasonable accommodations to protect against certain infection diseases, the lawsuit claims.
The filing also makes arguments the new law prevents hospitals and clinics from providing a safe work environment. COVID-19, Hepatitis B, pertussis and other communicable diseases are “recognized hazards” that can cause death or serious physical harm, the lawsuit says.
Having unvaccinated employees also “undermines the credibility” of doctors urging vaccine-hesitant patients to become vaccinated, the lawsuit states. The new law is based on discrimination protections and codified in the Montana Human Rights Act, saying it is an unlawful discriminatory practice to refuse employment opportunities based on vaccine status. It is not specific to COVID-19, but extends to all existing and future vaccines.
The filing makes several arguments the new law instead puts clinics and hospitals at risk of violating the Americans with Disabilities Act because it discourages immune-compromised workers from accepting positions otherwise available to them at their facilities.
It also argues the law prevents doctors and hospitals from taking necessary steps to ensure patients with compromised immune systems are able to access health care in the same way that patients without compromised immune systems can.
The individual plaintiffs all have one or more chronic medical conditions, which require frequent care from doctors. They also have compromised immune systems, which makes them more susceptible to acquiring an infectious disease.
One plaintiff also has a newborn daughter who cannot be vaccinated against COVID-19 because of age, and also cannot be vaccinated against certain childhood diseases such as pertussis.
Plaintiffs “have a professional obligation to ensure that immunocompromised patients be treated in a safe and individualized manner, which includes assurances that treating providers and staff are vaccinated against certain diseases,” the lawsuit argues.
When it comes to the state Constitution-protected right to a clean and healthful environment, the lawsuit argues the new law prevents “persons with compromised immune systems … from enjoying a healthy environment and securing their right to safe and healthy medical care.”
The law also violates both state and federal equal protection laws, the filing claims, by treating hospitals and clinics more stringently than nursing homes, long-term care or assisted living facilities, calling that an “unreasonable and baseless distinction.”
During a press call Wednesday, Bozeman Health said when it creates contracts for staff that it brings in to help with shortages, it has requested the staffing agencies it works with to send only vaccinated staff for consideration.
“According to the current Legislature we cannot (require vaccination of employees). However, from a contractual standpoint, there are ways for us to vet and evaluate and make additional requests and make additional decisions on who we contract with,” said Bozeman Health’s incident command leader Kallie Kujawa.
Last week, Montana Attorney General Austin Knudsen signed onto a letter sent by 24 Republican attorneys general to the Biden Administration threatening a lawsuit over vaccine requirements for some employees or weekly testing for those who do not get vaccinated.
Democratic President Joe Biden earlier this month said he'd direct the Occupational Health and Safety Administration to write a rule that would require employers with 100 or more workers to either have them get vaccinated to be tested weekly. The rule would go through an emergency process to be put into place.
A constitutional law professor said HB 702 would be preempted if the federal emergency rule is enacted.