House Bill 702: Frequently Asked Questions

A memorandum from the Department of Public Health and Human Services for medical care providers regarding House Bill 702 may be accessed here.
  • House Bill 702 (“HB 702”) was passed by the 2021 Montana Legislature and became effective when signed by Governor Gianforte on May 7, 2021. The law prohibits discrimination based on vaccination status or having an immunity passport.

    The law will be published as part of the Montana Human Rights Act in Title 49, chapter 2, part 3 of the Montana Code Annotated.

    Last Updated 7/26/21
  • An “immunity passport” means a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery. Last Updated 7/26/21
  • "Vaccination status" means an indication of whether a person has received one or more doses of a vaccine.

    Last Updated 7/26/21
  • HB 702 prohibits discrimination in Montana based on vaccination status or possession of an immunity passport by a person, governmental entity, employer, or public accommodation.

    Last Updated 7/26/21
  • “Person” has a broad definition under the Montana Human Rights Act:  

    “Person” means one or more individuals, labor unions, partnerships, associations, corporations, legal representatives, mutual companies, joint-stock companies, trusts, unincorporated employees' associations, employers, employment agencies, organizations, or labor organizations.

    Section 49-2-101(18), MCA.

    Last Updated 7/26/21
  • The Governmental Code of Fair Practices, which is Montana’s law prohibiting discrimination by governmental entities, defines “state or local governmental agency” as: 

    (a) any branch, department, office, board, bureau, commission, agency, university unit, college, or other instrumentality of state government; or

    (b) a county, city, town, school district, or other unit of local government and any instrumentality of local government.

    Section 49-3-101(4), MCA.

    Last Updated 7/26/21
  • “Public accommodation” also has a broad definition under the Montana Human Rights Act:

    "Public accommodation" means a place that caters or offers its services, goods, or facilities to the general public subject only to the conditions and limitations established by law and applicable to all persons. It includes without limitation a public inn, restaurant, eating house, hotel, roadhouse, place where food or alcoholic beverages or malt liquors are sold for consumption, motel, soda fountain, soft drink parlor, tavern, nightclub, trailer park, resort, campground, barbering, barbering nonchemical, cosmetology, electrology, esthetics, or manicuring salon or shop, bathroom, resthouse, theater, swimming pool, skating rink, golf course, cafe, ice cream parlor, transportation company, or hospital and all other public amusement and business establishments.

    “Public accommodation” does not include an institution, club, or place of accommodation that proves that it is by its nature distinctly private. An institution, club, or place of accommodation may not be considered by its nature distinctly private if it has more than 100 members, provides regular meal service, and regularly receives payment for dues, fees, use of space, facilities, services, meals, or beverages, directly or indirectly, from or on behalf of nonmembers, for the furtherance of trade or business. . . [A]ny lodge of a recognized national fraternal organization is considered by its nature distinctly private.

    Section 49-2-101(20), MCA (emphasis added).

    Last Updated 7/26/21
  • Yes. The law prohibits an employer from refusing employment, barring a person from employment, or discriminating in any term, condition, or privilege of employment based on vaccination status or whether the person has an immunity passport.

    The law provides special provisions for health care facilities. See below for more information about employees, patients, visitors, or other persons of health care facilities.

    Last Updated 7/26/21
  • Does this legislation only apply to vaccination status or an immunity passport regarding the vaccines for COVID-19?

    No. HB 702 applies to all vaccines and is not limited to COVID-19 vaccines. 

    Last Updated 7/26/21
  • Can a person, governmental entity, public accommodation, or employer ask about your vaccination status or ask you to produce an immunity passport?

    Nothing in the language of HB 702 prohibits a person, governmental entity, public accommodation, or employer from asking about vaccination status or whether you have an immunity passport. However, if asked, a person is not required to respond and may not be discriminated against for failing to respond.

    Last Updated 7/26/21
  • Can a person, governmental entity, public accommodation, or employer offer an incentive for persons to get vaccinated?

    Nothing in HB 702 prohibits a person, governmental entity, public accommodation, or employer from offering incentives to persons to voluntarily become vaccinated as long as the nature of the incentive is not discriminatory (not so substantial as to be coercive.) For example, an incentive in the form of a small gift, such as a water bottle or gift card worth less than $25, is generally not considered discriminatory. For more guidance about incentives, please see the EEOC Guidance What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws, (Updated May 28, 2021), eeoc.gov/coronavirus.

    Last Updated 7/26/21
  • Can a person, governmental entity, public accommodation, or employer require everyone on their premises or during the course of employment to wear a mask?

    Yes. Nothing in HB 702 prohibits a person, governmental entity, public accommodation, or employer from requiring everyone on their premises or during the course of employment to wear masks, regardless of vaccination status, as long as there is a provision for accommodations for persons based on sincerely held religious beliefs or disability. 

    Last Updated 7/26/21
  • Can a person, governmental entity, public accommodation, or employer ask or suggest you wear a mask if either you choose not to share your vaccination status or if you share that you are not vaccinated?

    Yes. Nothing in HB 702 prohibits a person, governmental entity, or public accommodation from asking or suggesting you wear a mask.

    Last Updated 7/26/21
  • Can a person, governmental entity, public accommodation, or employer require you to wear a mask on their premises or during the course of employment if you either choose not to share your vaccination status or if you share that you are not vaccinated?

    It depends.  The law prohibits a person, governmental entity, public accommodation, or employer from requiring you to wear a mask on their premises or during the course of employment if you choose not to share your vaccination status or share that you are not vaccinated; however, the law includes exceptions for health care facilities, licensed nursing homes, long-term care facilities, and assisted living facilities. These facilities may require you to wear a mask in certain situations.  (As noted above, HB 702 does not preclude a person, governmental entity, public accommodation, or an employer from requiring everyone to wear a mask as long as it allows for reasonable accommodations based on sincerely held religious beliefs and disability.)  

    See below for more information about health care facilities, licensed nursing homes, long-term care facilities, and assisted living facilities.  

    Last Updated 7/26/21
  • Yes. The law specifically allows school districts to follow existing law on vaccination requirements found in Title 20, chapter 5, part 4, MCA. Last Updated 7/26/21
  • Yes. The law specifically allows day-care facilities to follow existing law on vaccination requirements found in Title 52, chapter 2, part 7, MCA. Last Updated 7/26/21
  • Is a licensed nursing home, long-term care facility, or assisted living facility required to follow HB 702?

    Licensed nursing homes, long-term care facilities, or assisted living facilities must follow the requirements of HB 702, unless doing so would result in a violation of regulations or guidance issued by the U.S. Centers for Medicare and Medicaid Services (CMS) or the U.S. Centers for Disease Control and Prevention (CDC). Specifically, HB 702 allows for an exemption for these facilities during any period of time that compliance would result in a violation of regulations or guidance issued by CMS or CDC.

    Last Updated 7/26/21
  • This law applies a broad definition of a health care facility, borrowed from Title 50, chapter 5.

    (a) “Health care facility” or “facility” means all or a portion of an institution, building, or agency, private or public, excluding federal facilities, whether organized for profit or not, that is used, operated, or designed to provide health services, medical treatment, or nursing, rehabilitative, or preventive care to any individual. The term includes chemical dependency facilities, critical access hospitals, eating disorder centers, end-stage renal dialysis facilities, home health agencies, home infusion therapy agencies, hospices, hospitals, infirmaries, long-term care facilities, intermediate care facilities for the developmentally disabled, medical assistance facilities, mental health centers, outpatient centers for primary care, outpatient centers for surgical services, rehabilitation facilities, residential care facilities, and residential treatment facilities.

    (b) The term does not include offices of private physicians, dentists, or other physical or mental health care workers regulated under Title 37, including licensed addiction counselors.

    Section 50-5-101(26), MCA.

    Last Updated 7/26/21
  • Can a health care facility require all employees, patients, visitors, or other persons on their premises to wear a mask?

    Nothing in HB 702 prohibits a health care facility from requiring everyone to wear masks, including employees, patients, visitors, and other persons on their premises regardless of vaccination status, as long as there is a provision for accommodations for persons based on sincerely held religious beliefs or disability. 

    Last Updated 7/26/21
  • It depends. HB 702 allows a health care facility to ask employees about vaccination status. If an employee chooses not to provide their vaccination status, the health care facility may assume the employee is not vaccinated.  If a health care facility determines or assumes that an employee is not vaccinated, then the law permits the health care facility to implement" reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune to protect the safety and health of employees, patients, visitors, and other persons from communicable diseases.”

    The reasonable accommodation measures imposed by a health care facility to protect safety and health may include a face mask requirement for all employees, patients, visitors, and other persons who are not vaccinated or non-immune or who are assumed to be not vaccinated or non-immune.

    Last Updated 7/26/21
  • To report a complaint of discrimination, you can draft and file your own complaint or contact the Montana Human Rights Bureau (HRB) to schedule an intake appointment.  If you want to draft your own complaint, learn more about how to do this on the Human Rights Bureau’s website (www.montanadiscrimination.com) and just click-on “How to File a Self-Drafted Complaint.” 

    You can file a complaint via mail or fax to:

    Montana Human Rights Bureau
    PO Box 1728
    Helena MT, 59624-1728
    FAX: (406) 443-3234

    If you require assistance in filling a complaint, you can contact the Human Rights Bureau at 1-800-542-0807.

    Last Updated 7/26/21
  • HB 702 states that violations of these provisions are “an unlawful discriminatory practice,” and the legislation will be codified in the Montana Human Rights Act (MHRA). The legislation contains no specific or unique remedy provision for violations of the MHRA, so an alleged violation of this legislation will follow the same path as any complaint of discrimination in Montana.

    A complaint of discrimination under the MHRA is subject to informal investigation by the HRB and administrative review by the Human Rights Commission (HRC). If the HRB finds reasonable cause to believe discrimination occurred, or the HRC remands a matter for hearing, the matter is heard by the Department of Labor and Industry’s Office of Administrative Hearing (OAH). A hearing before OAH is like a trial before a trained Hearing Officer. 

    If a Hearing Officer finds discrimination, the Hearing Officer has broad discretion to fashion remedies upon a finding of discrimination, including to “(a) prescribe conditions on the accused's future conduct relevant to the type of discriminatory practice found; (b) require any reasonable measure to correct the discriminatory practice and to rectify any harm, pecuniary or otherwise, to the person discriminated against; (c) require a report on the manner of compliance.” Section 49-2-506(1)(a)-(c), MCA. However, punitive damages are not allowed for violations of this act.  Section 49-2-506(2), MCA.

    A Hearing Officer’s Final Agency Decisions are subject to judicial review and appeal under the Montana Administrative Procedure Act, Title 2, chapter 4,

    Last Updated 7/26/21
  • Now that the FDA has granted full approval to a COVID-19 vaccine, may employers require employees to be vaccinated?
     
    A vaccine’s FDA approval status does not impact protections offered by HB 702. (If the employer is a licensed nursing home, long-term care facility, or assisted living facility, that employer may be exempt from all or part of HB 702 if compliance would put the facility in violation of regulations or guidance issued by the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention.)
    Last Updated 8/23/21
  • My federal employer just told me I need to be vaccinated against COVID-19 as a condition of employment. Does that violate HB 702?

    HB 702 violations are resolved by the Human Rights Commission.  However If you are looking to file a complaint against a federal entity (e.g., Department of Interior), the Human Rights Bureau does not have jurisdiction over a federal agency.  If you are a federal employee or job applicant and you believe that a federal agency has discriminated against you, each agency is required to post information about how to contact the agency's Equal Employment Opportunity (EEO) Office. You can contact an EEO Counselor by calling the office responsible for the agency's EEO complaints program.

    Last Updated 9/24/21
  • In light of the Biden Administration’s vaccine mandate announcement, should employers with more than 100 employees begin requiring their employees to be vaccinated against COVID-19?

    No. House Bill 702 and its requirements remain in effect. Furthermore, no associated OSHA rules or regulations for employers have been issued at this time.

    Last Updated 9/24/21
  •  In light of the Biden Administration’s vaccine mandate announcement, should all health care facilities begin requiring their employees to be vaccinated against COVID-19?

    No. House Bill 702 prohibits an employer from refusing employment, barring a person from employment, or discriminating in any term, condition, or privilege of employment based on vaccination status or whether the person has an immunity passport.

    However, HB 702 does not prohibit a health care facility asking employees about vaccination status. If an employee chooses not to provide their vaccination status, the health care facility may assume the employee is not vaccinated.  If a health care facility determines or assumes that an employee is not vaccinated, then the law permits the health care facility to implement "reasonable accommodation measures for employees, patients, visitors, and other persons who are not vaccinated or not immune to protect the safety and health of employees, patients, visitors, and other persons from communicable diseases.

    The reasonable accommodation measures imposed by a health care facility may include a face mask requirement for all employees, patients, visitors, and other persons who are not vaccinated or non-immune or who are assumed to be not vaccinated or non-immune.

    Last Updated 9/24/21
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