As part of the backlash against employer-mandated COVID-19 vaccinations, Montana amended its antidiscrimination law to add vaccination status as a protected category. This means that employers are prohibited from inquiring or discriminating on the basis of vaccination or immunity status. The law contains narrow exceptions for nursing homes and hospitals, but not for other health care facilities. The law prompted a lawsuit claiming that the Montana law was preempted by the federal Americans with Disabilities Act and the Occupational Safety and Health Act, among other claims. The district court agreed and issued an injunction blocking implementation of the law.

On appeal, in Montana Medical Assn. v. Knudsen, the Ninth Circuit Court of Appeals disagreed, reversing the lower court’s decision and dissolving the injunction. The appellate court did not rule on the merits of the preemption argument, concluding the plaintiffs lacked standing because the harms alleged in the complaint were too speculative to constitute actual adverse outcomes. First, the Ninth Circuit concluded that the ADA argument failed because the lawsuit did not specify situations where the reasonable accommodation process would require disclosure to the employer of vaccination status. Similarly, the plaintiff’s OSH Act claims that the General Duty Clause may require vaccination mandates in some situations was too generalized to create a preemption issue.

While reversing the lower court decision, the Ninth Circuit left the door open to future challenges to the Montana law based on more concrete demonstrations of harm. This decision may prompt other states hostile to vaccination mandates to adopt similar laws that would limit employers' options for addressing future pandemics.

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