Officials Issue Further Legal Guidance On Vaccine Mandate

Montana Attorney General Austin Knudsen issued legal guidance last week on the status of the Biden administration’s federal vaccine mandate for federal contractors. The guidance follows Knudsen’s initial guidance issued earlier this month to help Montana workers understand their rights.

Knudsen says Biden’s claims in his Sept. 9 speech that federal contractors will be subject to mandatory vaccination requirements for their workforce were misleading. The administration’s executive order 14042 is directed at federal agencies —not federal contractors — and plainly states that the order only applies to new federal contracts or agreements or renewals of existing ones.

“By the plain language of the President’s Executive Order, there is no vaccination requirement imposed on existing federal contractors. It does not, and cannot, require federal contractors with existing agreements with the federal government to discriminate against their employees based on vaccination status,” Knudsen’s guidance states. “If the federal government has not executed a new contract with a federal contractor, then the President’s Executive Order simply does not apply. In such an instance, Montana law applies, and discrimination based on vaccination status is illegal.”

Montana Gov. Greg Gianforte says Biden’s executive order violates Montana law prohibiting discrimination based on a person’s vaccination status.

In a letter accompanying Gianforte’s new guidance, the governor wrote, “As outlined in concurrent guidance from my administration, President Biden’s executive order violates Montana law. COVID-19 vaccine mandates, including as a condition of employment, are illegal in Montana, and state law makes clear that contract terms that violate Montana public policy are unenforceable. As such, President Biden’s order is unenforceable.”

Gianforte also wrote, “While I encourage Montanans to consult with their health care provider and get vaccinated, doing so is voluntary and no individual should face discrimination based on their vaccination status.”

The governor’s guidance clarifies to whom the president’s executive order applies, as well as the effect of the executive order on new or renewed contracts. It also outlines reasonable accommodations for health care facilities and special rules for licensed nursing homes and long-term care and assisted living facilities.

The Biden Executive Order also does not apply to federal grants, Indian tribes under the Indian Self-Determination and Education Assistance Act, contracts or subcontracts whose value is equal to or less than the simplified acquisition threshold, or subcontracts solely for the provision of products.

Anyone suffering discrimination by an employer based on their vaccination status should contact the Montana Human Rights Bureau at 406444-2884. A formal complaint must be filed with the bureau within 180 days of the alleged discriminatory action. For more information on filing a complaint, visit https://erd. dli.mt.gov/human-rights/filing- a-complaint/?utm_medium= email& utm_source=govdelivery.