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Judge won’t block Montana’s vaccine anti-discrimination law

Law forbids employers requiring workplace vaccines
Posted at 6:35 PM, Feb 01, 2022
and last updated 2022-02-01 20:35:36-05

SIDNEY — A state judge Tuesday rejected a request to block Montana’s controversial law that bars businesses or other employers from requiring employees to be vaccinated – and indicated she will not find it unconstitutional.

District Judge Olivia Rieger of Glendive said the law firm suing to overturn the law can find other ways to protect itself from COVID-19 infections, and that its right to have a clean and safe environment for its employees is not reliant on requiring vaccinations, for workers or customers.

The new law “does not prevent (the law firm or its owner) from adopting and implementing health and safety measures,” Rieger wrote. “It prevents him from implementing the health and safety measure he wants, which is to treat vaccinated and unvaccinated individuals differently.”

Rieger’s ruling denied a request from Netzer Law Firm of Sidney and partner Donald Netzer for a preliminary injunction blocking the law while she decides its constitutionality. While Tuesday’s ruling isn’t the final word on the case, Rieger’s order strongly suggested that she will rule to uphold the law, saying that Netzer is “not likely to succeed on the merits” of the case.

The ruling is a victory for the state, which is also defending against a separate lawsuit challenging the law in federal court. That suit says the law should be invalidated as it applies to hospitals and medical offices where physicians work.

Netzer Law filed suit last October to overturn portions of House Bill 702, which was enacted last spring by the Legislature’s Republican majority and signed by GOP Gov. Greg Gianforte. No Democrats voted for it.

The suit said HB702 violates constitutional guarantees to a clean and healthful environment, by prohibiting employers from ensuring their workers and customers are protected from communicable disease.

The law says no employer can require any employee or refuse employment to anyone based on their vaccination status, for any disease.

It also prohibits businesses and any “governmental entity” from withholding or denying any services or facilities to anyone based on their vaccination status.

The law has exceptions for schools, day-care centers, nursing homes and other long-term care facilities.

Rieger said Netzer has a constitutional right to protect the healthy environment of its business and employees. However, she said she was not persuaded that the law against vaccination discrimination would cause economic harm for the law firm.

The cost of wearing face-masks, washing hands and regular testing for COVID-19 for employees could occur with or without the law, she said, and could be carried out regardless. She also said that no vaccine will be 100 percent effective, and that it’s been shown that vaccinated people can carry the virus as well.

“Donald Netzer is entitled to a clean and healthful environment, but it is an impossibility for that right to depend solely on a person’s vaccination status,” Rieger wrote.