Days before the start of the fall semester, Billings Public Schools Superintendent Greg Upham issued a statement reimplementing a face mask requirement for all K-12 students and staff in the district. School officials had previously adopted an optional mask policy for the fall, but in an Aug. 21 letter to stakeholders, Upham explained that a number of factors, including a recent outbreak among student athletes at Skyview High School, prompted him to change course “to slow the spread of COVID-19 and to keep our schools open.”
The about-face made for a rocky start to the new school year. Hundreds of parents and students protested outside the Yellowstone County Courthouse last week demanding a return to optional masking. State Superintendent of Public Instruction Elsie Arntzen was among the attendees and reportedly spoke in opposition to Upham’s mask mandate. One parent filmed his child being turned away from Boulder Elementary School for refusing to wear a mask, and Upham disclosed that three district staff members were put on suspension for not complying with the requirement. Meanwhile, local health care industry leaders and the Billings Chamber of Commerce expressed support for Upham’s decision.
Billings’ conflict over the issue underscores the challenges that school districts, counties and other entities throughout Montana are experiencing in adopting policies to combat rising COVID-19 case counts. And the rift in public sentiment about masking has been further complicated in the past month by another revelation. Under revised CDC guidelines, close contacts of positive cases are not recommended to quarantine if they’re vaccinated and asymptomatic, but are recommended to quarantine if they’re not vaccinated — a distinction that runs counter to House Bill 702, a new law passed by the 2021 Montana Legislature that bars “discrimination” on the basis of vaccination status. Schools, government agencies and private employers now face a choice: Adhere to HB 702 — the only law of its kind in the country — or follow the advice of national medical experts in direct violation of state law.
For school districts in counties that have enacted policies in line with HB 702, that means the decision whether to quarantine and isolate will fall to individual students, parents and teachers. Arntzen told Montana Free Press her office has advised districts that, under HB 702, they “cannot segregate a population” of students based on vaccination status. Kirk Miller, executive director of the School Administrators of Montana, said the most schools can do is request that people exposed to the virus take the responsible course of action for the sake of their personal and community health.
“It falls back on personal responsibility,” Miller said. “The message from our school districts is that they are concerned about the challenge that that creates for families, and they’re concerned with the challenge that it creates in the school environment for being able to ensure that somebody who has tested positive is actually not coming into the school environment.”
According to Montana School Boards Association Executive Director Lance Melton, the complications raised by HB 702 extend beyond classroom attendance. The law also bars schools from taking vaccination status into account at public events such as football games and school concerts. MTSBA has advised its members to comply with HB 702. Regardless of the organization’s views on the issue, Melton said, unvaccinated people are now a legally protected class under the Montana Human Rights Act, and students can’t be denied facilities, advantages or educational opportunities based on whether they’re inoculated.
“So if a student considers [in-person learning] to be an advantage that’s being withheld from him, the advantage of being able to be in-person for instruction, then you can’t make that distinction on the basis of whether or not that student is vaccinated,” Melton said. “House Bill 702 pins us in a corner and doesn’t leave any room for creative interpretation.”
Throughout the pandemic, local health officials have repeatedly emphasized the importance of quarantine and isolation as tools for limiting the spread of communicable diseases. They’ve also remained sensitive to the impacts that quarantining has had on Montanans over the past year and a half. Ross Miller, chair of the Missoula City-County Board of Health, told MTFP that the strain placed on teachers, students and working parents who suddenly have to hole up at home was a major factor in his latest vote on Missoula’s quarantine policy. On Aug. 24, the board briefly considered complying with HB 702 by adopting a blanket quarantine order for vaccinated and unvaccinated people alike.
Instead, after extensive discussion of the disruption to learning, business and income that could result, Miller and his fellow board members unanimously voted to follow the CDC’s guidelines.
“Our biggest responsibility here is to as best we can, and of course it gets a little bit confusing at times, to do the right thing,” Miller said during the vote. “If that means we invite a lawsuit because of some poorly crafted legislation that thought this virus, pandemic, was going to go away as soon as they adjourned, so be it.”
‘THE BEST CARROT WE HAVE’
So far, Missoula County is the only county in Montana to continue issuing quarantine orders for unvaccinated people who come into contact with a positive COVID-19 case. Miller told MTFP that he understands the policy could expose the county to a legal challenge from the state, thus launching a battle about the legality of HB 702. But that’s not why the board decided to go the route it did, he said.
“What drove us was to do the right thing in regards to protecting public health,” Miller said. “If that meant that we end up essentially kind of taking a stand, well, then we’re willing to let the chips fall where they may. Put it this way: we weren’t going to not do the right thing in order to avoid taking a stand.”
Yellowstone County Health Officer John Felton said one pitch he would use to persuade people to get vaccinated — aside from the reduced likelihood of being hospitalized or suffering from the more extreme consequences of COVID-19 — is the fact that, according to CDC guidelines, vaccinated people who come into close contact with someone who has the virus wouldn’t have to quarantine for two weeks. But as Felton interprets HB 702, making unvaccinated people quarantine while not making vaccinated people quarantine would violate the law.
“It takes away the best carrot we had to get people vaccinated,” he said. “If we follow CDC guidelines we violate state law, and if we follow state law we’re violating CDC guidelines.”
State law allows local health departments to enforce quarantine and isolation measures to prevent the spread of disease. A person who does not comply with such an order can be convicted and fined up to $100. A number of other Montana counties have stopped issuing quarantine orders for close contacts, including Lewis and Clark, Butte-Silver Bow, Cascade and Gallatin. Instead, health officials are encouraging people to self-isolate, but nothing about that encouragement can prevent a person from circulating in public as they wish.
Flathead County Health Officer Joe Russell said his department is now “advising quarantine” for all close contacts, vaccinated or not. When someone is determined to be a close contact of a person with the virus, they are sent a letter telling them to stay home for 14 days and wear a mask. But the letter contains what Russell calls “two off-ramps” for quarantine. It states that according to CDC guidelines a person who has had the virus within the last three months or is vaccinated does not need to self-isolate.
“We tell them it’s their decision,” Russell said. “At that point, it’s up to the person to say, ‘Well, I’m vaccinated so I don’t need to quarantine,’ or ‘I’m not vaccinated, so I do need to quarantine.’ That’s how we’re going to deal with everyone from now on.”
CONFUSION FOR BUSINESSES AND NURSING HOMES
While much attention has been focused on how schools and local health departments are navigating the intricacies of House Bill 702, businesses and health care facilities are also trying to figure out what the law means for them. Bridger Mahlum, government affairs director for the Montana Chamber of Commerce, said his organization has received a flood of inquiries about House Bill 702 in recent weeks.
“We’re hearing from a lot of members in the business community who are curious about how this law will actually work in practice,” he said. “Right now, I think a lot of people are taking a wait-and-see approach.”
While the statewide Chamber of Commerce did not take a position on the bill, Mahlum notes that it does put Montana businesses in a unique position. He said employers obviously don’t want to break the law, but they do want to keep their employees and customers safe. While the bill was signed into law in May, Mahlum said interest in its provisions has increased dramatically in recent weeks, in part, he believes, because of the new wave of COVID-19 cases brought by the more transmissible Delta variant of the virus.
Nationally, more and more businesses and events are requiring employees and even customers to be vaccinated. In August, singer-songwriter Jason Isbell announced that going forward all concertgoers at his shows will have to be vaccinated. The new requirement came just weeks after Isbell performed at the Under the Big Sky festival in Whitefish. If Isbell maintains the policy, his days of performing in Montana may be over. On Tuesday, the band Tennis announced on social media that they are cancelling two upcoming shows in Bozeman and Missoula because of Montana’s new law. MTFP reached out to a number of major concert venues and promoters in western Montana to ask about vaccination requirements and HB 702. They either didn’t respond or declined to be interviewed.
Mahlum said he’s particularly curious about how large corporations with employees in Montana will handle the law. In August, major transportation companies that operate in Montana, including United Airlines and Amtrak, announced they would require employees to be vaccinated against COVID-19.
In a statement to MTFP, Amtrak spokesperson Marc Magliari wrote, “We are aware of the Montana law and are evaluating that consistent with the various federal laws that apply to Amtrak’s nationwide rail workforce to be sure our program complies with all applicable laws.”
There are exemptions to HB 702’s provisions, specifically for nursing homes. Before it was passed by the Legislature, a clause was added stating that nursing homes and long-term care facilities would not have to follow the law if doing so violates federal guidance or regulations. On Aug. 18, the Biden administration announced that all nursing homes and assisted-living facilities would have to vaccinate their staff against COVID-19 as a condition of receiving Medicare and Medicaid funding. Specific guidance on the requirement is expected to be issued in late September, but some nursing homes in Montana are already worried that it could lead to staffing shortages.
Jason Cronk, chief executive officer of Immanuel Lutheran Communities in Kalispell, said that as of last week about 60% of the company’s 300 staff members are vaccinated. While the assisted-living facility has offered information and incentives to encourage employees to get vaccinated, the remaining 40% appear to be steadfast against getting the shot. Cronk said he’s worried that when the specifics of the federal mandate are handed down, some vaccine-refusing staff will leave — and with hospitals across the state experiencing staffing shortages, they won’t have a hard time finding work.
Rose Huges, executive director of the Montana Healthcare Association, said that a mass exodus of employees who don’t want to get vaccinated could exacerbate staffing challenges at the state’s nursing homes. Earlier this summer, she took an informal survey of many facilities across the state, and nearly all said their biggest challenge is a lack of employees. In some places, the shortage is so bad that facilities can’t accept new residents.
“It’s not an ideal situation,” she said. “And [this mandate] could make our staffing problems even bigger.”
HOW IT CAME TO THIS
When HB 702 first appeared in the Legislature in late March, public testimony quickly established that the bill would create considerable challenges if passed. Concerns that it would jeopardize Medicare and Medicaid funding for long-term care facilities prompted Gov. Greg Gianforte to add the amendment granting them the conditional exemption. Gianforte’s amendment also gave hospitals the ability to ask employees to volunteer their vaccination status and adopt additional safety protocols for employees who declined or were known to be unvaccinated. The amended version passed the House 64-32 and the Senate 32-18. Gianforte signed it into law May 7.
Rep. Jennifer Carlson, R-Manhattan, sponsored HB 702. She did not immediately respond to requests for comment for this story.
The breadth of HB 702 is considerable, extending vaccination status protections to individuals across a large swath of the public and private sectors. It applies not only to COVID-19 vaccines but to all other vaccinations, including those for influenza, measles, mumps and pertussis. The latter, also known as whooping cough, is a regular source of outbreak concern for local health officials and public schools.
The law does not apply to service members with the Montana National Guard, spokesperson Major Robert Allinson said via email. Guard personnel are subject to vaccination requirements issued by the Department of Defense, which mandated COVID-19 vaccination for all members on Aug. 24. Failure to comply with DOD requirements is grounds for discharge.
MTSBA’s Lance Melton, who is also an attorney, pointed out that for nearly every other protected class under the Montana Human Rights Act, the state can make a distinction for disparate treatment based on “reasonable grounds.” For example, he said, there’s a compelling state interest that allows Montana to prohibit people with serious visual impairments from driving. No reasonable-grounds language was included in HB 702.
The vote on HB 702 put Rep. Geraldine Custer, R-Forsyth, between “a rock and a hard spot.” Initially, she was the only Republican on the House floor to oppose the measure. In an interview with MTFP, Custer said her opposition was largely due to the potential impacts on federal funding for rural hospitals and health care facilities, which rely heavily on Medicare and Medicaid to cover staff wages and other expenses. Her other concern, she said, was for the health and safety of patients, particularly older ones. Custer switched tacks to support the bill only after Gianforte indicated to the Legislature that he would resolve those issues.
“We thought that the governor was going to take care of the concerns that we had with the hospitals and the workers and all that,” Custer said. “And then it just didn’t pan out that way.”
Gianforte has declined to issue any statewide mandates regarding masking or quarantining, continuing instead to message about personal responsibility when it comes to the choice to mask and vaccinate. His latest action, taken Aug. 31, is to announce a Department of Public Health and Human Services emergency rule to “promote the role of parents as the ultimate decision makers on matters pertaining to the health of their children” and to say school districts “should” allow parents to opt their children out of local mask mandates.
Another factor weighed on Custer’s personal deliberations this spring: constituent feedback. HB 702 generated the second-highest number of public comments of any bill in the session, with lawmakers receiving 8,078 messages in support of the bill and 77 in opposition. The sheer volume of voter input, coupled with claims by several nurses that they would be fired if they weren’t vaccinated, was also a deciding factor for Sen. Tom Jacobson, D-Great Falls, the sole Democrat to vote in favor of the bill. Jacobson told MTFP that the messages flooding his email inbox were often prefaced with the phrase, “Look, I’m not an anti-vaxxer,” and highlighted for him the fear felt by some Montanans — among them people with underlying medical conditions — about the long-term effects of the vaccine.
“I tried to do what I felt was the right thing for the people in my district,” Jacobson said. “I didn’t have a crystal ball to say, ‘Wow, we’re going to see this new Delta variant and we’re going to have another spike.’ I mean, I think the hope was we would be on the back end of this by now.”
Neither Jacobson nor Custer recall potential complications regarding quarantine and isolation policies coming up during the Legislature’s discussion of HB 702, and the issue wasn’t raised during committee hearings. Jacobson said he’s not sure whether he would have voted differently given knowledge of the bill’s current impact on schools, counties and businesses.
Custer, in retrospect, is more confident.
“I probably would have voted no,” she said. “The people could have been mad at me, but then it would have been done. It would’ve been done and over. And now it’s just continuing on, festering.”
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