Earlier this year, Montana became the first state to make discrimination based on vaccination status in employment illegal. Specifically, House Bill 702, passed as an amendment to the Montana Human Rights Act, prohibits discrimination by employers based on vaccination status or possession of an “immunity passport.” The law defines “immunity passport” as a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery. “Vaccination status” is defined as an indication of whether a person has received one or more doses of a vaccine.

The law also prohibits employers from mandating individuals receive “any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials.”

Since the law’s enactment, the Montana Department of Labor & Industry has released a set of FAQs regarding the law. The FAQs provide helpful clarification on the following key employment practices:

• The law does not prohibit an employer from asking about vaccination status or whether an employee has an immunity passport. However, the FAQs warn that employers should not discriminate against employees that refuse to respond.
• The law also does not prohibit employers from offering incentives to persons to voluntarily become vaccinated so long as the incentive is not so substantial as to be considered coercive (specifically, the FAQs explain that a small gift, such as a water bottle or gift card worth less than $25, would generally not be considered discriminatory).
• The law prohibits (with exceptions for certain healthcare facilities) an employer from requiring an employee wear a mask on their premises or during the course of employment if they choose not to share their vaccination status or share that they are not vaccinated. However, the FAQs clarify that the law does not prohibit employers 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.

Fox Rothschild’s Labor & Employment attorneys are available to assist employers with compliance with this Montana law and with the development of their COVID-19 employment policies and procedures.