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Docs, hospitals file suit to undo MT ban on vaccination requirements

Suit says ban violates U.S., MT constitutions
US District Courthour.jpg
Posted at 12:06 AM, Sep 23, 2021
and last updated 2021-09-24 08:48:20-04

MISSOULA —
A coalition of medical providers and patients filed suit Wednesday to invalidate Montana law that bars them from requiring employees to be vaccinated, saying it violates federal law and the U.S. and Montana constitutions.

The suit said portions of the law – passed by Republican majorities at the 2021 Legislature – illegally prevents physicians, their offices, and hospitals from providing a safe environment for patients.

The law “limits the ability of hospitals to exercise their professional judgment in determining the conditions of employment of those persons in clinic settings and otherwise, when necessary to address the safety of patients, providers and staff,” the suit said.

The filing of the suit comes during a resurgence of Covid-19 infections in Montana, with many of the state’s major hospitals crammed with infected patients. As of Thursday, hospitalizations for Covid-19 surpassed 400 statewide, the highest level since last fall.

“The presence of unvaccinated medical workers undermines the credibility of (physicians) when they urge vaccine-hesitant patients to become vaccinated, even when the vaccines may be in the best interest of the patients and of the public at large,” the lawsuit said.

The lawsuit, filed in U.S. District Court in Missoula, asked the judge to permanently block enforcement of portions of the law – which is believed to be the only state law in the nation that bars all businesses from requiring employees to be vaccinated.

But the suit does not seek to invalidate the law for all businesses, but rather asks only to prevent it from applying to physicians and offices where they work. It also does not challenge the portion of the law that prohibits businesses from refusing service to people because of their vaccination status.

The Montana Medical Association, which represents physicians and is the lead plaintiff in the suit, said Thursday it wants to "restore a physician's ability to protect the safety of their vulnerable patients."

The MMA also emphasized that the suit is not just about Covid-19, noting that the law applies to all vaccines, forbidding employers to require workers to get any of them.

"This (ban) includes the ability to take reasonable mitigation steps if an employee has not been vaccinated for infectious diseases, such as rubella, smallpox, polio, whopping cough, measles, mumps and others," the MMA said in a statement.

Montana Attorney General Austin Knudsen, named as the lead defendant, will vigorously defend the law, his office said.

"Attorney General Knudsen ... is committed to protecting Montanan’s right to privacy and their ability to make their own healthcare decisions," said his spokeswoman, Emilee Cantrell.

The sponsor of the law, state Rep. Jennifer Carlson, R-Manhattan, told MTN News that she will "continue to stand up for the rights of every Montanan to make personal vaccination choices for themselves and their children."

"Discrimination is wrong," she said in a statement. "Montanans are overwhelmingly opposed to medical mandates that impact their ability to participate in society. That’s not how America works."

Additional plaintiffs in the lawsuit include the Western Montana Clinic, Five Valleys Urology, Providence Health & Services, which operates St. Patrick Hospital in Missoula, and seven people listed as patients who have compromised immune systems or other special medical considerations and must frequently access medical care.

They must “avoid commercial and professional establishments that fail to take steps to minimize spread of the virus and other common viruses and germs,” including hospitals or physician offices that employ unvaccinated workers, the suit said.

The new law therefore violates the federal Americans with Disabilities Act, because it prevents hospitals and physician offices from taking steps to accommodate those with disabilities, the suit said.

The suit said the law also violates Montana’s constitutional guarantee to a safe and healthy environment, federal occupational rules, and equal-protection language, because it treats hospitals and physician offices differently than nursing homes – which have an exemption in the law.

It said unvaccinated workers are more likely to spread infections, including Covid-19, and that health-care facilities have a professional obligation to enforce infectious-disease prevention standards.

Read the full complaint below.