HELENA, Mont. (Legal Newsline) - Federal law preempts a Montana statute barring discrimination against unvaccinated workers but BNSF employees can still pursue claims a $300 bonus for getting vaccinated was “coercive.”
The railroad was subject for a brief period to a 2021 presidential order requiring employees at federal contractors to be vaccinated against COVID-19. BNSF informed employees of the mandate and offered a $300 bonus -- around $160 after tax – to get the jab.
But it rescinded the requirement in December 2021 after a federal court issued a nationwide injunction, keeping only the bonus for vaccination.
Two workers filed administrative actions, citing a Montana law passed earlier in the year banning workplace vaccine mandates. They also argued the bonus illegally coerced them into getting the vaccine.
A Montana Human Rights Bureau officer found BNSF may have violated the law by threatening employees with firing during the month the presidential order was in effect. The officer also found the $300 bonus was “enough to be coercive,” but said it was up to the courts decide if federal law preempted the Montana statute.
The U.S. District Court in Montana ruled for BNSF on the question of preemption, saying it had already decided this question in a May 2024 decision involving Cabela’s. But it declined to issue an injunction halting lawsuits over the $300 bonus.
While after-tax amount seems more in line with water bottles and $25 gift cards that have been allowed, it’s up to Montana to decide, the court said.
Michelle Friend of Hedger Friend in Billings represents BNSF. The workers' cases were stayed pending resolution of BNSF's federal court matter.