Vaccination Status a Protected Category? In Montana, Yes. Will Other States Follow?

Is an employee’s vaccination status a protected category? In Montana it is.

With COVID-19 vaccines now widely available, employers are grappling with how to manage their workforce and employees’ vaccination status:

• Whether to require vaccines for their employees
• Whether to incentivize employees to receive the vaccine
• What employers can share with workers about employee vaccination status
• Whether companies should take no action about employee vaccination status

It is definitely muddled.

Montana stepped in recently and answered the question for its jurisdiction. On May 7, Montana House Bill 702 was signed into law. It recognizes an individual’s vaccination status as a protected category.

Related: Can Employers Mandate the COVID-19 Vaccine?

Montana’s rationale was based on the assessment that medical records are protected by the Montana Constitution and deserve the utmost constitutional protection.

What Does this Mean for Montana’s Employers?

Pursuant to Montana’s law, employers may not discriminate against, refuse to employ, or bar an individual from employment based on whether the individual has been vaccinated or holds an immunity passport.

The law prohibits employers from requiring employees to receive “any vaccine whose use is allowed under an emergency use authorization,” such as the current COVID-19 vaccine.

“Vaccination status” is defined under their law as “an indication of whether a person has received one or more doses of a vaccine.” And an “immunity passport” is defined as “a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery.”

Montana Law Exemptions

Licensed nursing homes, assisted living care facilities, and long-term care facilities are exempt from the law if their compliance would violate regulations or guidance from the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention.

These types of healthcare facilities may ask employees to volunteer their vaccination status for the purpose of “determining whether the health care facility should implement reasonable accommodation measures to protect the safety and health of employees, patients, visitors and other persons from communicable diseases.” The healthcare facility must follow through with implementing such reasonable accommodation measures and may consider any employee who declines to provide their vaccination or immunization status to the healthcare facility as nonvaccinated or nonimmune.

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What’s Happening in Other States?

So far, Montana is the first and only jurisdiction to recognize an individual’s vaccination status as a protected category.

However, we are seeing vaccine anti-discrimination legislation pending in several other states. A number have pending legislation in some form that would protect employees who decide not to receive the COVID-19 vaccine, including:

• Alabama
• Alaska
• Arkansas
• California
• Colorado
• Connecticut
• Illinois
• Indiana
• Iowa
• Kansas
• Maryland
• Michigan
• Minnesota
• New Mexico
• North Carolina
• Ohio
• Oklahoma
• Oregon
• Pennsylvania
• Rhode Island
• South Carolina
• South Dakota
• Tennessee
• Texas
• Utah
• Washington
• Wisconsin

Meanwhile, Georgia, Missouri, Vermont, and Virginia have similar pending legislation that would apply to public employers only.

The details of this pending legislation varies by jurisdiction but generally would override guidance from the Equal Employment Opportunity Commission, which advises that employers may require employees to receive the COVID-19 vaccine as long as reasonable accommodations are provided to employees who are unable to be vaccinated due to a disability or a sincerely held religious belief.

What Next?

COVID-19 has upended employer responsibilities in countless ways over the past year-plus. From state and local restrictions to remote work and emergency paid leave, the pandemic has put plenty of strain on HR and compliance teams.

With this newest batch of legislation related to COVID-19, employers should tread carefully when deciding how to manage employee vaccination status and what information they may ask of their workers.

Keep an eye on the jurisdictions where you have locations, as well as remote employees, to ensure compliance with any new laws that may pass in this area.

This Employment Law News blog is intended for market awareness only, it is not to be used for legal advice or counsel.