Federal appeals court reinstates vaccine choice law for Montana health care facilities

The U.S. Ninth Circuit Court of Appeals ruled Thursday that Montana's pandemic-era law barring vaccine mandates and data collection may go into effect in health care settings, reversing a federal judge's injunction from 2022 after state attorneys appealed the case early last year. 

House Bill 702, which was already in place for many other private businesses and employment settings, prohibits employers from discriminating on the basis of a person's vaccination status. The law applies not only to COVID-19 vaccines but also to immunizations against measles, mumps, rubella, varicella, tuberculosis, diphtheria, pertussis and hepatitis B.

The Thursday ruling by a panel of three justices allows HB 702 to now apply to health care facilities that were shielded from compliance under the federal district court injunction. 

The plaintiffs that challenged the 2021 Republican-backed law included immunocompromised patients, the Montana Medical Association, the Montana Nurses Association, Western Montana Clinic and Five Valleys Urology. 

Together, the plaintiffs argued that the law conflicted with the requirements of the Americans with Disabilities Act (ADA) and the Occupational Safety and Health Act (OSH Act) to take available precautions against the spread of infectious diseases. They also said that the law made carveouts for some health facilities, such as senior and long-term care centers when specific federal regulations apply, but not others.

During a three-day trial in Missoula in 2021, the plaintiffs summoned multiple health care experts and facility employees to testify about how up-to-date vaccine information can help track which employees are inoculated against transmittable diseases, such as whooping cough. That type of mandatory documentation is prohibited by HB 702, making it difficult to assign workers to different units and patients based on their immunization status.

In the 2022 ruling, federal Montana district judge Donald Molloy ruled that the state law was preempted by the federal ADA and OSH Act, as it applied to health care settings, and was unconstitutional under the federal equal protection clause by creating distinct classes of facilities that are similarly situated.

But the Thursday ruling from the Ninth Circuit reversed Molloy's decision on all fronts, finding that the plaintiffs' arguments were too general to show that a real and present conflict exists between state and federal statutes.

"The district court's findings at most support a 'hypothetical or potential conflict' between the [Occupational Health Act] and HB 702, which is 'insufficient,'" the court wrote. 

Determining that the Montana law prohibits employers from keeping workers safe from "recognized hazards," such as disease transmission, "requires a more specific understanding in any given case about the nature of the employer, the workplace, the diseases in question, the risks they pose, the availability and feasibility of other methods of preventing the transfer of vaccine-preventable diseases, and so on," the ruling said.

Regarding the ADA, the court also said that the plaintiff's concerns were not specific. 

"Plaintiffs do not argue that the ADA expressly preempts HB 702, but that it does so impliedly," the court said. "Although this does not foreclose challenges based on future or anticipated conflicts, it does mean that 'speculative' conflicts are not sufficient ... [T]he record must fairly support 'an irreconcilable conflict' between federal and state law."

The appeals court decision criticized Molloy's findings as "overbroad," citing the lack of evidence and sufficient fact-finding presented by the parties during the trial.

"[T]he district court below made no apparent findings about whether the requested accommodation would be necessary to accommodate any specific ADA claimants, let alone all ADA-protected persons in health care settings. Nor did the district court properly consider whether ADA beneficiaries could be reasonably accommodated in ways that do not violate HB 702, such as through uniform PPE requirements, testing measures, appropriate alternative work arrangements, and so on," the ruling stated. 

A spokesperson for Attorney General Austin Knudsen's office celebrated the appeal court's decision in a Thursday statement.

"This is great news for Montanans. No one should be subject to discrimination because of their vaccination status. We're glad the Ninth Circuit corrected Molloy's erroneous decision," said spokesperson Chase Scheuer.

The Montana Medical Association, one of the plaintiffs in the case, said it was considering next steps.

"Physicians and health care providers want patients to know that our policies are set to protect them when they seek treatment," said MMA president Ernest Gray, adding that this decision makes that "more difficult." He said the organization is "reviewing the decision of the Ninth Circuit and weighing our future legal options."

The Montana Nurses Association echoed that comment in a Thursday afternoon statement.

"At trial, community members came together to show how dangerous this law is for health care in Montana," said MNA CEO Vicky Byrd. "We are analyzing the Court's decision and assessing our next steps."