A federal appeals panel says federal disability access laws can't necessarily be used to stop state governments from passing laws forbidding some health care organizations and facilities from discriminating against employees based on whether they have received certain vaccinations.
On Oct. 9, a three-judge panel of the U.S. Ninth Circuit Court of Appeals overturned a Montana federal judge's decision that a recent Montana state law can't be enforced, because it supposedly conflicts with both the Americans with Disabilities Act and the Occupational Health and Safety Act.
The Ninth Circuit Court handles appeals from federal courts in California and the states of Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington. The decision would be applicable to any similar cases originating in those states, as well.
The ruling allows the state of Montana to revive enforcement of the law, known as House Bill 702. The law was passed in 2021 by Montana state lawmakers to prohibit employers, including some of those in the health care sector, from forcing people to choose between keeping their jobs or receiving vaccines.
The law specifically exempted hospitals and long-term care facilities, allowing them to "ask an employee to volunteer the employee's vaccination or immunization status" to "use that information 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 legislation landed as employers and governments throughout the world and the U.S. were requiring people to receive one of the Covid vaccines as a condition of employment or as a condition of entering certain public places, such as restaurants or theaters.
HB702 explicitly banned discrimination on the basis of vaccination status in the state of Montana.
The law was challenged by the Montana Medical Association and the Montana Nurses Association, which represents the state's doctors and nurses, and by hospital and health care organizations operating in Montana.
The lawsuit asserted the law illegally conflicted with the federal ADA and OSHA statutes, because it blocked health care employers from taking measures to ensure their workers were vaccinated, which they say they were required by the federal laws to do to protect immunocompromised patients and workers and others particularly susceptible to Covid and potentially other infectious diseases.
In court filings, the plaintiffs argued health care organizations are not only empowered, but required, to potentially compel workers to receive a Covid shot and potentially other vaccines to ensure the immunocompromised - who they say are legally protected as "disabled" - can receive "reasonable accommodations" of access in their facilities, as they argued the law required.
In the ruling, Molloy held that the ADA all but requires health care facilities to discriminate against the unvaccinated, so as to protect "immunocompromised disabled persons."
Molloy further ruled that HB702 would force health care employers to violate the federal OSHA law by compelling them to abandon their general duty to ensure a safe workplace.
Molloy has served on the federal court since 1996, when he was appointed by former President Bill Clinton.
On appeal, however, the Ninth Circuit judges said Molloy overreached in his broad decision and legal conclusions.
The appellate opinion was authored by Circuit Judge Daniel A. Bress, with concurrence from Judge Jay S. Bybee. Judge M. Margaret McKeown filed a separate special concurrence with the majority.
In the majority ruling, Bress said Molloy relied too heavily on testimony and evidence supposedly backing the "importance of vaccines," across the board.
The judges said that is not the correct way to interpret the ADA or evaluate ADA claims.
"... The ADA requires health care facilities to make 'reasonable accommodations' for qualifying disabled employees, absent 'undue hardship' to the employer, as well as 'reasonable modifications in policies, practices, or procedures' when 'necessary' to afford their services to individuals with disabilities," Bress wrote. "Determining the scope of the duties to make 'reasonable' accommodations and modifications requires reference to the particular situation of the potential ADA plaintiff...
"But the evidence presented at trial - about the general importance of vaccines and the general health risks posed by unvaccinated workers - does not demonstrate anything more than that 'in a hypothetical situation a private party’s compliance with' HB 702 'might cause [it] to violate the' ADA, which is insufficient to show a preemption-producing conflict between the two laws," Bress wrote.
"... On this record, plaintiffs have not shown that a specific accommodation or modification involving knowledge of employee vaccination status or discrimination based on vaccination status would be reasonable or necessary in any or all health care settings."
Bress and his colleagues further chided Molloy for failing to show that the OSHA law can be applied as he did to block HB702.
"The trial record in this case addresses these issues at too high a level of generality to support a finding of preemption as to any specific employer, much less all employers in health care settings," Bress wrote. "Indeed, and perhaps tellingly, neither the plaintiffs nor the district court identify any case holding that the general duty clause (of the OSHA law) impliedly preempts state law, let alone one enjoining the enforcement of a state law as to an entire industry.
"... We are hard-pressed to endorse an expansive preemption theory under which health care entities may have been routinely violating the OSH Act by employing infection control policies different than those plaintiffs prefer."
In her special concurring opinion, Judge McKeown said she agreed with her colleagues' overall ruling rejecting Molloy's decision.
But she said, to the decision should not be read to set an "insurmountable bar" for plaintiffs to be able to perhaps later prevail on their claims and invalidate at least portions of HB702 to secure the right for health care employers to discriminate against the unvaccinated.
"Are there circumstances in which not discriminating or adjusting work conditions on the basis of vaccine status pose no problem under the ADA? Of course. But does HB 702 have a plainly legitimate sweep if it sets an unknowable number of environments on a crash course with the ADA? Perhaps not," McKeown wrote.
"... To be sure, HB 702 is likely preempted in some circumstances, but it is Montana Medical’s burden to justify the scope of the remedy sought."
The health care challengers were represented by attorney Kathryn S. Mahe and others with the firms of Garlington Lohn & Robinson PLLP, of Missoula, Montana; and the Graybill Law Firm PC, of Great Falls, Montana.
The state of Montana was represented by attorneys with the Office of the Montana Attorney General.
Bress was appointed to the Ninth Circuit by former President Donald Trump and Bybee by former President George W. Bush.
McKeown was appointed by former President Clinton.