Montana passed a law last spring that prohibits discrimination in any form against people based on their vaccination status. HB 702, signed by Governor Greg Gianforte on May 7, 2021, places unvaccinated persons in a legally protected class under the Montana Human Rights Act. It is the only law of its type in the nation. With looming federal mandates requiring many citizens to get a Covid vaccination or risk losing their job, the law directly pits the state against the power of federal requirements. While it is well established that federal law supersedes state legislation, the federal mandates may not exactly be “law.” This will only serve to further baffle and confuse employers as they attempt to navigate the Covid regulatory minefield.

2 U.S. Code § 1555 defines a Federal mandate as, “Notwithstanding section 1502 of this title, for purposes of this subchapter the term “Federal mandate” means any provision in statute or regulation or any Federal court ruling that imposes an enforceable duty upon State, local, or tribal governments including a condition of Federal assistance or a duty arising from participation in a voluntary Federal program.” The mandates, being issued via special rules coming from agencies such as OSHA and others, have the same effect as law, but the constitutionality of such broad actions have yet to be assessed by courts across the land. 

And while much of the focus has turned to get unvaccinated people to become vaccinated people, an early issue in Montana seems to have turned to how people exposed to the virus can be handled in response. A debate on quarantining, separation, and isolation is underway in the state, with HB 702 potentially prohibiting different actions based on vaccinated status. The core issue is if a non-vaccinated person is exposed to the virus, can they be forced to quarantine, while a vaccinated person exposed is free to go about their business? HB 702, in addition to preventing employment discrimination based on vaccination status (with some carve-out options for Medicare and Medicaid providers), also prevents different treatment of those two groups after they have been exposed. People may not be separated, isolated, or otherwise singled out based solely on their vaccination status.

Frankly, in this politically super-charged environment, I believe the fight over vaccines is making us miss some critical points. Perhaps we should look at the (now radical) option of treating everyone the same. 

There is beginning to be ample evidence, out of Israel and other locales with very high vaccination rates, showing that vaccinated people are as capable of carrying and passing the virus as unvaccinated people. In fact, some studies show that they may actually be contributors to “super spreader” events, simply because they may not know they have a high viral load. The statistics do show that the vaccinated have lesser symptoms and are less likely to require hospitalization, but in the current environment, the reality that they can still contract and spread the virus is being lost. If we encouraged anyone exposed to the virus to isolate or quarantine for 2 weeks – no matter their vax status, it would not be an unreasonable action. 

Getting the vaccination may help protect you from serious harm, but it does not mean you cannot be a threat to others. That fact (IMHO) is being lost in the HB 702 debate in Montana, as well as elsewhere in the country.

The confusion over Covid has been intense in this country, and it doesn’t seem to be clearing anytime soon. Debate is raging over the effectiveness and proper utilization of vaccines, as well as the authority of the federal government to make broad employer mandates in the manner they are proposing. Our leaders in Washington have done little to inspire confidence on either side of the issue. Covid, as well as the response to it, has created many victims in its wake. Let’s hope that common sense and rational debate aren’t the biggest victims of the pandemic when all is said and done.


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