DPHHS Issues Statement on Injunction Against Federal Vaccine Mandate for Health Care Workers

“The Department of Public Health and Human Services (DPHHS) is pleased that a federal court has issued an order granting a nationwide preliminary injunction against implementation of CMS’s vaccine mandate for health care workers, particularly in light of its legal shortcomings and the dire impact it would have on frontier states like Montana.

With the court’s decision, House Bill 702, which makes discrimination on the basis of vaccination status unlawful, remains the law in Montana. Thus, Montana health care facilities cannot require staff to be vaccinated for COVID-19. DPHHS continues to encourage all eligible Montanans to talk to their trusted, personal health care provider and get vaccinated.” DPHHS Director Adam Meier

Information regarding the preliminary injunction; clarifies HB 702 is the law in Montana:

The Centers for Medicare & Medicaid Services (CMS) issued an interim final rule (IFR) on November 5, 2021, requiring COVID-19 vaccination of all eligible staff of health care facilities that participate in the Medicare or Medicaid programs. These health care facilities were required to ensure that all eligible staff receive the first dose of a 2-dose COVID-19 vaccine or a 1-dose COVID-19 vaccine by December 6, 2021 (and the second dose of a 2-dose vaccine by January 4, 2022), unless they received a medical or religious exemption. The State of Montana, along with a number of other states, challenged the CMS IFR in a lawsuit filed in the U.S. District Court for the Western District of Louisiana on November 15, 2021.

In a memorandum ruling issued on November 30, 2021, on the states’ motion for preliminary injunction, the district court concluded that Montana and the other states are likely to prevail in the lawsuit. Among other things, the court concluded the states are likely to prevail on the claims the federal defendants exceeded their authority in promulgating the IFR and that the rule is contrary to law and violates the Constitution.

The district court issued a preliminary injunction, applicable nationwide (except as to 10 states in which the IFR has already been preliminarily enjoined), precluding CMS from implementing the IFR. The order prevents CMS from implementing (or enforcing) the IFR as to all healthcare providers, suppliers, employees, and all others covered by it. The preliminary injunction will remain in effect pending the final resolution of the lawsuit, or until further order of the district court, the U.S. Court of Appeals for the Fifth Circuit, or the U.S. Supreme Court.

At the same time that CMS issued the IFR, the U.S. Occupational Safety and Health Administration (OSHA) issued an emergency temporary standard (ETS) that required employees of covered employers (generally private businesses with 100 or more employees) to receive COVID-19 vaccination or to wear a mask and undergo weekly COVID-19 testing. As a result of certain lawsuits challenging the OSHA ETS, on November 12, 2021, the U.S. Court of Appeals for the Fifth Circuit issued an order staying the OSHA ETS (pending adequate judicial review of the motions for permanent injunction filed by the parties that challenged the ETS) and directing that OSHA take no steps to implement or enforce the ETS pending further court order; OSHA has since suspended ETS implementation and enforcement.

As a result of the Louisiana district court decision (and the Fifth Circuit’s order on the OSHA ETS), House Bill 702 – barring discrimination on the basis of vaccination status – remains the law in Montana. Thus, at this time, Montana health care facilities cannot require that staff receive COVID-19 vaccines.

This Department of Labor and Industry (DLI) Frequently Asked Questions (FAQ) page details House Bill 702, protections afforded by the law, and how to file a vaccination status discrimination complaint.

Individuals seeking to file a vaccination status discrimination complaint can contact DLI’s Human Rights Bureau at 1-800-542-0807.