The Montana Department of Labor & Industry has released several FAQs clarifying Montana House Bill 702. The law, which went into effect on May 7, 2021, prohibits employers from mandating the current COVID-19 vaccines¹ and recognizes an individual’s vaccination status as a protected category under the Montana Human Rights Act. Employers, therefore, are barred from discriminating against an individual in compensation or in a term, condition, or privilege of employment based on vaccination status or possession of an immunity passport.²

Many of the FAQs are simply reiterations of certain provisions of the statute, while others provide helpful clarifications regarding the law. The following are some key takeaways for employers:

• Asking Employees About Vaccination Status: The FAQs clarify that nothing in the law prohibits employers from asking about vaccination status or whether an individual has an immunity passport. A person is not, however, required to respond to such inquiries and may not be discriminated against for not responding.

• Vaccination Incentives: According to the FAQs, employers are in fact allowed to offer incentives to employees to become vaccinated voluntarily, so long as the nature of the incentive is not discriminatory (“not so substantial as to be coercive”). It states, “[f]or 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.” The FAQ then points to EEOC Guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws for further guidance on the topic. Thus, it is reasonable to assume that as long as the vaccine incentive is modest, it will pass muster in Montana.

• Requiring Masks in the Workplace: The law prohibits employers from discriminating against unvaccinated workers—or those who choose not to disclose vaccination status—by requiring them to wear masks on their premises or during the course of employment. In an interesting twist, the FAQs clarify that employers may indeed ask, request, or even require that everyone on their premises or during the course of employment wear masks, regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions and disabilities that preclude receiving the vaccine.

• Healthcare Facilities: The law permits healthcare facilities to ask their employees to volunteer their vaccination status, and to assume an employee who declines to provide their vaccination status is not vaccinated. If a healthcare facility determines an employee is not vaccinated, the facility may implement "reasonable accommodation measures to protect the safety and health of employees, patients, visitors and other persons from communicable diseases." The FAQs indicate that the reasonable accommodation measures imposed by a healthcare facility to protect and promote safety and health may include a face covering requirement for all employees, patients, visitors, and other persons who are unvaccinated or non-immune or assumed to be unvaccinated or non-immune. Alternatively, the healthcare facility can simply choose to require everyone to wear masks on the premises regardless of vaccination status, as long as accommodations are made for sincerely held religious beliefs, medical conditions and disabilities that preclude receiving the vaccine.

As always, we recommend employers consult with their employment counsel if they have questions regarding implementation of changes to their existing workplace safety policies and procedures, in Montana and beyond.