Can The Governor Ban Private Sector Vaccine Requirements?
Montana Gov. Greg Gianforte signed an executive order Tuesday banning the use of COVID-19 vaccine requirements by government agencies or private businesses. But the order could be on legally shaky ground when it comes to the private sector.
Like governors in Florida and Texas, Gianforte has banned the use of what he is calling "vaccine passports."
The state does have the ability to decide whether to require proof of a COVID-19 vaccination in order to enter state buildings or to receive state services, according to University of Montana law professor Anthony Johnstone. But, Johnstone says, the order likely has little authority over private businesses wanting to implement a vaccine requirement for customers — an action that Gianforte’s order bans. He explained that in this instance, the governor's emergency rulemaking powers are tied to protecting public health.
“This doesn’t, and probably couldn’t, cite those authorities because it isn’t framed as advancing the public health," Johnstone said.
He added that there is plenty of precedent for vaccine requirements in a number of settings such as public schools, universities and even employers requiring their employees to be vaccinated against certain diseases — which Gianforte’s order does not mention.
The governor's order does explicitly state that it is not banning long-term care or assisted-living facilities from requiring proof of COVID vaccination for residents.
Brock Tessman, Montana University System Deputy Commissioner, said there will likely be little impact on the university system as it is largely focused on offering as many vaccines as possible to students and staff.
“Our campuses do require certain immunizations, but there hasn’t been any talk of adding the COVID vaccine to that list," he said.
There are a handful of bills making their way through the Montana Legislature that would provide religious or personal exemptions for COVID vaccination requirements in schools or in the private sector.