Gianforte Reaffirms Montana Law Banning Discrimination Based on Vaccination Status

Governor Gianforte provided guidance to Montana employers and employees impacted by the Occupational Safety and Health Administration (OSHA) rule mandating vaccines for employers with 100 or more employees nationwide.

“Montana law is unequivocal: employers are prohibited from discriminating based on vaccination status,” Gov. Gianforte wrote in guidance to Montanans. “While employers may encourage employees to vaccinate, they may not tie or modify any terms of employment based on vaccination status.”

On November 5, 2021, OSHA published the “COVID-19 Vaccination and Testing Emergency Temporary Standard” applicable to employers with 100 or more employees nationwide. The OSHA mandate violates Montana law prohibiting discrimination based on a person’s vaccination status.

The OSHA mandate was immediately challenged, and its enforcement was stayed nationwide by the Fifth Circuit Court of Appeals until December 17, 2021, when the Sixth Circuit Court of Appeals issued a ruling allowing implementation of the OSHA mandate. The Sixth Circuit ruling has also been challenged and is presently pending before the U.S. Supreme Court.

In a letter accompanying his guidance to Montanans, the governor wrote, “The Sixth Circuit Court of Appeals ruling is clear that no employer is obligated under the OSHA mandate to include a vaccination requirement in its COVID-19 workplace plan.”

He continued, “Montana employers, in exercising their discretion under the OSHA mandate to determine the details of their COVID-19 workplace plans, must do so in a manner that complies with Montana’s non-discrimination policy as expressed in HB 702 and codified at Mont. Code Ann. 49-2-312, and may not include any provisions that discriminate based on a person’s vaccination status.”