Montana Employers Cannot Treat Employees Differently Based on Vaccination Status

As many states’ mask mandates expire, employers are struggling to determine the best approach to masks in the workplace. Many employers have chosen to relax mask requirements for vaccinated employees. However, employers in Montana can no longer make such a distinction between vaccinated and unvaccinated employees without running afoul of state law.

Signed into law on May 7, 2021, Montana’s House Bill 702 (“HB 702” or the “statute”) makes it unlawful for an employer to “discriminate against a person … in a term, condition, or privilege of employment based on the person’s vaccination status.” Section 1(1)(b). The statute does not define the phrase “term, condition, or privilege” of employment. The law also bars employers from requiring employees to receive vaccines, such as the current COVID-19 vaccine, “whose use is allowed under emergency use authorization or any vaccine undergoing safety trials.”

Based on the broad language of the statute, it is very likely that the right to work without a mask is a privilege of employment under Montana law. Therefore, it is discriminatory to allow vaccinated employees to work without a mask but require non-vaccinated employees to wear one. This view is further bolstered by the fact the statute carves out limited exceptions permitting health care facilities to implement reasonable accommodations for non-vaccinated employees without engaging in unlawful discrimination. See HB 702, Section 1(3)(b). The Montana Legislature’s explicit carve-out for health care facilities necessarily implies that the statute does not afford the same exception for other employers. In other words, a non-health care employer would engage in unlawful discrimination if it asked about an employee’s vaccination status and made accommodations (such as a mask requirement) for those non-vaccinated employees.

In sum, the most plausible reading of HB 702 is that any differing treatment by an employer based on an employee’s vaccination status now constitutes discrimination under Montana law. Although HB 702 does not contain specific enforcement mechanisms, an employee could likely file a charge of discrimination under the Montana Human Rights Act (“MHRA”) for “discriminatory acts.” If the employer terminated the employee, the employee might also have a claim under the Montana Wrongful Discharge from Employment Act (“WDEA”).

Further complicating the matter, Montana employers still have to grapple with the Occupational Safety and Health Administration (“OSHA”) rules, which require workplaces to be free from known hazards. Because employers risk an OSHA violation if unvaccinated employees are mask-free, Montana employers should continue to require masks for all employees (including vaccinated employees) until OSHA issues modified guidance regarding COVID-19 and workplace safety.