NO VACCINE PASSPORT

HB702 outlaws the use of vaccine passports and vaccination status discrimination.

During the 2021 session, Montana sate legislators approved HB702 which prohibits the requirement of “vaccine passports” or discrimination against those who choose not to reveal their vaccination status and Gov. Greg Gianforte signed the legislation into law shortly afterwards. On Wednesday, the Montana Department of Labor and Industry and the Department of Health and Human Services released guidelines for that legislation.

“This guidance will help Montana employers and businesses stay in compliance with the law and help ensure that Montanans do not face discrimination due to their vaccine status,” said Laurie Esau, Montana Commissioner of Labor and Industry.

“The DPHHS urges compliance with HB 702 and stands ready to help our providers, provider associations and other partners navigate the law,” said DPHHS Director Adam Meier. “We appreciate our partners’ efforts to prevent discrimination based on vaccination status and believe this guidance will prove useful as they work to better understand and implement the law.”

The following is an overview of some of the key provisions released by the state.

According to the information provided, this legislation applies to all vaccines, not just COVID-19 vaccines.

An immunity passport is defined first. An “immunity passport” means a document, digital record or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery. As such, the law prohibits discrimination in Montana based on vaccination status or possession of an immunity passport by a person, governmental entity, employer, or public accommodation.

The guidelines then define “public accommodation” as a place that caters or offers its services, goods, or facilities to the general public subject only to the conditions and limitations established by law and applicable to all persons. It includes without limitation almost every type of place or business open to the public.

Basically, other than those specifically exempted, any business, government entity or any other type of facility normally open to the public must follow these guidelines.

As mentioned, there are a few exceptions.

The law specifically allows school districts and day-care facilities to follow existing state and federal laws on vaccination requirements.

Licensed nursing homes, long-term care facilities, or assisted living facilities must follow the requirements of HB 702, unless doing so would result in a violation of regulations or guidance issued by the U.S. Centers for Medicare and Medicaid Services (CMS) or the U.S. Centers for Disease Control and Prevention (CDC). Specifically, HB 702 allows for an exemption for these facilities during any period of time that compliance would result in a violation of regulations or guidance issued by CMS or CDC.

Also excluded are private facilities such as an institution, club, or place of accommodation that proves that it is by its nature distinctly private. There are limits to what is considered private. An institution, club, or place of accommodation may not be considered by its nature distinctly private if it has more than 100 members, provides regular meal service and regularly receives payment for dues, fees, use of space, facilities, services, meals, or beverages, directly or indirectly, from or on behalf of nonmembers, for the furtherance of trade or business. However, a lodge of a recognized national fraternal organization is considered by its nature distinctly private.

The guidelines then address what is and what is not allowed. The law prohibits an employer from refusing employment, barring a person from employment or discriminating in any term, condition, or privilege of employment based on vaccination status or whether the person has an immunity passport. The law does, however, provide special provisions for health care facilities.

There are also some measures a public facility may take. Nothing in the language of HB 702 prohibits a person, governmental entity, public accommodation, or employer from asking about vaccination status or whether you have an immunity passport. However, if asked, a person is not required to respond and may not be discriminated against for failing to respond.

Also, nothing in HB 702 prohibits a person, governmental entity, public accommodation, or employer from offering incentives to persons to voluntarily become vaccinated as long as the nature of the incentive is not discriminatory (not so substantial as to be coercive.) For example, an incentive in the form of a small gift, such as a water bottle or gift card worth less than $25, is generally not considered discriminatory. For more guidance about incentives, please see the “EEOC Guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.”

Finally, nothing in HB 702 prohibits a person, governmental entity, public accommodation, or employer from requiring everyone on their premises or during the course of employment to wear masks, regardless of vaccination status, as long as there is a provision for accommodations for persons based on sincerely held religious beliefs or disability.

To report a complaint of discrimination, a person can draft and file a complaint or contact the Montana Human Rights Bureau (HRB) to schedule an intake appointment. If someone wishes to draft their own complaint, more information can be found on the Human Rights Bureau’s website (www.montanadiscrimination.com) and just click-on “How to File a Self-Drafted Complaint.”

Complaints can also be mailed or faxed to:

Montana Human Rights BureauPO Box 1728Helena MT, 59624-1728FAX: 406-443-3234

For assistance in filling a complaint, contact the Human Rights Bureau at 1-800-542-0807.

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