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Second lawsuit challenges Montana's vaccine discrimination law

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A law firm in Sidney is challenging a new law prohibiting private businesses from requiring that employees be vaccinated, arguing it runs afoul of the state Constitution's equal-protection clause and its guarantee of a "clean and healthful environment."

It's the second lawsuit challenging Montana's "vaccine discrimination" law, which is the only such law in the country that applies the prohibition to the private sector. Other states that have recently passed similar laws only affect government workplaces.

Netzer Law Office in Sidney filed the complaint in Richland County District Court on Tuesday. It names the state, Republican Attorney General Austin Knudsen and Commissioner of Labor and Industry Laurie Esau as defendants.

Joel Krautter, an attorney at the law firm, filed the complaint. Krautter is a former Republican state lawmaker, having served a single term as the representative from House District 35 before losing to a 2020 primary challenge.

House Bill 702, passed by Republican lawmakers and signed into law by Republican Gov. Greg Gianforte in May, aims to prevent workplaces and customers from discrimination based on their vaccination status.

While the conversation leading up to its passage focused mainly on the possibility of "vaccine passports" for COVID-19, it applies to all types of vaccinations.

The complaint argues that HB 702 "limits the ability of Netzer Law from exercising its professional judgment in determining the conditions of employment when necessary to address the health and safety of employees or potential employees, or to provide for the health and safety of its clients" and others. The law firm also has an office in Billings.

In making the case that HB 702 prevents the law office from providing "a safe and healthy environment" to clients and others, the lawsuit cites the fact that the ongoing surge in new COVID-19 cases throughout the state has overwhelmed critical care capacity at many hospitals. Gianforte last week dispatched four National Guard members to Sidney Health Center, and earlier in September sent 20 Guard members to the two largest hospitals in Billings.

Only 40% of eligible Richland County residents have been fully vaccinated against the coronavirus as of Oct. 6, according to data published by the state Department of Public Health and Human Services. In Yellowstone County, that number is 53%.

HB 702 includes a carve-out for long-term care facilities but not hospitals or other medical settings. It also allows schools and day cares to continue to require some vaccinations. The complaint cites the former exemption to argue that the law hinders the firm's ability to meet the state's equal-protection guarantees, as it is "unable to provide its employees, potential clients, clients and other third parties the same healthy workplace environment that Montana nursing homes, long-term care facilities and assisted living facilities are able to provide."

In a statement Wednesday, AG spokeswoman Emilee Cantrell wrote: "Attorney General Knudsen will defend Montana’s law. No one should be treated differently because of their vaccination status."

Department of Labor and Industry spokeswoman Jessica Nelson declined to comment.

The law firm is asking the court to grant an injunction to prohibit the enforcement of HB 702 and that the court declare HB 702 unconstitutional. It also requests reimbursement for the costs of litigation.

Netzer Law's complaint was filed two weeks after the Montana Medical Association, a Missoula hospital, medical clinics and people with compromised immune systems filed the first challenge to HB 702, in federal court in Missoula. That complaint makes the case that the vaccine law violates federal protections for people with disabilities and work safety standards in hospitals. It also argues that the new law prevents hospitals from “appropriately addressing” unvaccinated staff.

Despite skyrocketing COVID cases over the past two months, Montana's statewide vaccination rate has continued to lag behind the national average. Just 53% of Montana's eligible population is vaccinated, compared with 66% of Americans.

Unvaccinated Americans are 4.5 times more likely to get infected and are 11 times more likely to die from COVID-19 than those who have been fully vaccinated, according to studies published last month by the Centers for Disease Control and Prevention. 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.

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