Judge denies Montana motion to dismiss challenge to vax ban

HELENA — Legal challenges to a new Montana law that prevents most businesses from requiring their employees be vaccinated against any communicable disease are moving forward in federal and state courts, though a judge recently said one of the cases appeared unlikely to succeed.

The law passed by the 2021 Legislature makes it illegal for people to be discriminated against based on their vaccine status. However, it includes an exemption for nursing homes and other long-term care facilities if the federal government threatened to pull Medicare and Medicaid reimbursement.

The limited exemption led Montana medical providers and residents with compromised immune systems to file a challenge in federal court in September 2021. They want a judge to exempt hospitals and other medical providers from the new law, thus allowing them to require their employees to be vaccinated.

The law — which applies to all vaccinations — prevents medical providers from complying "with national standards for the care and treatment of patients, including observing and enforcing infectious disease prevention protocols," the complaint stated.

Late last month, U.S. District Judge Donald Molloy rejected the state's efforts to dismiss the challenge, saying the case could move forward based on arguments that the law violates the Americans with Disabilities Act and the ADA requirement that businesses provide equitable access to people with disabilities.

It's also a plausible argument, Molloy wrote, that the law violates equal protection rights included in the state and federal constitutions by allowing nursing homes and assisted living facilities — but not hospitals or clinics — to require their employees to be vaccinated against communicable diseases.

Molloy, however, said the plaintiffs could not argue the new law violated the state constitutional right to a clean and healthful environment because previous court rulings have determined that the right "applies exclusively to the natural environment."

The U.S. Supreme Court earlier this month upheld an order by the U.S. secretary of Health and Human Services that requires most health care workers to be vaccinated against COVID-19, unless they are exempt for medical or religious reasons. However, justices halted a federal vaccine mandate for large businesses.

Meanwhile, a small eastern Montana law firm was denied a preliminary injunction to block the state law after District Court Judge Olivia Rieger ruled the business could implement measures other than the vaccine to prevent the spread of COVID-19, such as masking, social distancing, hygiene requirements and remote work.

"While the best way to prevent the spread of COVID-19 may be vaccination, it is not the only way," Rieger wrote in the Tuesday order, which also noted that people who are vaccinated can carry and transmit COVID-19 to others.

Netzer Law Office and attorney Donald Netzer sued in October to block the law, arguing his firm faced potential loss of income because it would have to spend work time mitigating the effects of COVID-19, an effort that wouldn't be necessary if he could require vaccines of employees and clients.

Netzer and the law office haven't shown they face great or irreparable injury and are "therefore unlikely to succeed on the merits," Rieger wrote in denying the injunction.

Attorney General Austin Knudsen will continue to defend the law, Emilee Cantrell, spokesperson for Knudsen, said in a statement Tuesday.

"No Montanan should be forced by their employer to receive a vaccine they do not want," she said.