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Trump Religious Shield for Health Workers Puts Employers in Bind

May 30, 2019, 9:46 AM

Religious protections bolstered under a new Trump administration rule create a pathway to deny health care treatment to LGBT individuals, restrict abortion rights, and avoid providing vaccinations, prompting concern that employers in the health care industry are now in an untenable and risky position.

The so-called conscience rule, issued by the Department of Health and Human Services, allows health workers and hospitals to deny medical treatment based on religious beliefs. Supporters of the Trump administration’s rule say it simply closes holes in existing federal law and provides more certainty for employers.

Employment attorneys warn the rule could apply to more workers than the protection intended, and it fails to strike a balance between health access and religious rights. Unlike existing federal civil rights protections for religion, the rule doesn’t allow an employer to argue a hardship in granting accommodations to workers. Under the regulation, employers would be liable despite any harm to its business practices, which they can argue in workplace religious accommodation and discrimination cases in court.

Already there have been several legal challenges to the rule, which specifically offers protections for health care workers asked to perform abortions and abortion education, assisted suicide and counseling, and vaccines, among other things.

These lawsuits crystallize the tension for employers surrounding the latest example of the administration’s push for religious protections. Employers, as well as advocates, fear the impact extends beyond the courts and existing federal civil rights laws, creating a perilous environment for companies, especially those providing medical services. It fits into a larger push by the administration to allow religious rights to hold precedence over other categories protected by civil rights laws.

“I think at the broadest level, this rule is the latest effort by the Trump administration to promote a distorted view of religious liberty that gives broad license to discriminate and harm others,” said Daniel Mach, director of the ACLU program on freedom of religion and belief. “It’s a steady and growing problem. It’s turning the fundamental right to religious freedom on its head.”

Loss of Federal Funds

Workers can’t bring a private lawsuit against their employer under the department’s new conscience rule, which was finalized earlier this month and replaces a 2011 rule. However, it allows the department to strip federal funding from employers through enforcement action, which could mean a loss of billions in funding for hospitals and clinics around the country if they require employees to go against their religious beliefs to provide care.

Roger Severino, director of HHS’s Office of Civil Rights, said in a May 2 statement announcing the rule that it would ensure health care entities and professionals “won’t be bullied out of health care field because they decline to participate in actions that violate their conscience, including the taking of human life.”

The department also released a proposed regulation May 24 that would remove LGBT people and women seeking abortions from the Affordable Care Act’s non-discrimination protections, which would allow health care workers, hospitals, and insurance companies that receive federal funding to refuse to provide or cover services such as transition-related or reproductive care. Lambda Legal has already threatened to sue if the rule is finalized.

Supporters of the conscience rule say what’s at stake is protecting the rights of individuals in the health care industry from being compelled to perform services that clash with their beliefs. The issue has been litigated over the years. A nonprofit religious organization, for example, fought against requirements to provide contraceptive services. In another case, a New York nurse sued a hospital for allegedly forcing her to perform late-term abortions despite her objections as a Catholic.

One of the latest lawsuits filed May 28 in California federal court by advocacy groups, including the Center for Reproductive Rights and Lambda Legal, said the new regulation will cause “mass confusion among health care providers and is completely infeasible to implement.”

Other challengers to the the HHS conscience rule include Washington state, which was also filed its lawsuit May 28, and a group of states led by New York and California. San Francisco, in a separate lawsuit challenging the rule, warned of $1 billion in losses and said its public hospitals couldn’t support a system that forces religious beliefs to be valued over the lives of women or LGBT people, or other medically and socially vulnerable populations.

Hospitals and clinics rely on federal funding to stay open and couldn’t survive a loss of that money, said Genevieve Scott, senior staff attorney at the Center for Reproductive Rights on a call with press May 28.

“But the rule is intentionally confusing and unworkable for healthcare facilities to implement,” Scott said. “To avoid potentially violating the rule and losing their funding, many facilities may end up doing away with services that staff might object to, including reproductive health services, like abortion and contraception, and LGBT services. Other facilities may be forced to close.”

Religious protections have increasingly been used as a tool by the Trump administration to provide a pathway to discriminate, advocates say. The Labor Department has also announced plans to prioritize religious liberty protections for federal contractors as a shield against job discrimination charges.

The regulatory push also comes at a time when the U.S. Supreme Court and Congress consider protections for LGBT workers under federal civil rights laws. The high court has waded into the question of how far religious protections can go, but has never said that employers have the right to discriminate because of their religion.

Balancing Act

Employers have typically tried to balance patient care and religious accommodations, but the conscience rule, which favors religion, would make it more difficult to do so.

“It’s clear that religious objectors are currently amply accommodated by health care workplaces,” said Liz Sepper, law professor at Washington University in St. Louis. “It’s also clear that HHS is hoping through this rule to prompt ever greater numbers of employees and types of employees to make increasingly intransigent demands on their employers.”

Hospitals already go to great lengths to accommodate employees who want a religious or moral accommodation, she said. Sepper specializes in religious liberty, health law, and discrimination.

Staffing and scheduling, for example, are used to ensure that certain employees don’t run in to situations that conflict with their beliefs, Sepper said. But sometimes those beliefs conflict with the ability to provide good patient care and can’t be accommodated.

Leslie C. Griffin, professor of constitutional and first amendment law at the University of Nevada, Las Vegas, said while religious freedom is important, patients’ well being should come first.

“To me it’s more important that any patient get good health care and not that any patient get whatever religion say health care should be,” Griffin said.

Protection vs. Distortion

The new rule also creates broader worker protections than those under Title VII of the 1964 Civil Rights Act, which bars discrimination on the basis of religion, sex, race, and other characteristics. That federal civil rights law expressly requires employers to provide religious job accommodations unless doing so creates an undue hardship. By contrast, the health care rule scraps that hardship exemption explicitly.

“They don’t take into account serious harm to patients that could result in the religious refusals,” the ACLU’s Mach said. If patients are then denied these services, that could put employers on the hook for violating federal and state discrimination laws in other contexts. The string of lawsuits challenging the law say these employers will face an impossible choice in certain circumstances of providing necessary care and risking their funding.

Some Christian-based groups stress the need for the clarification in the rules, however. The regulation will be helpful to employers because the existing federal laws that protect religious beliefs have been a patchwork, said Kim Colby, director of the Christian Legal Society Center for Law and Religious Freedom.

“This regulation doesn’t change the federal laws that have been in place. It brings them all into one place. It’s been an intimidating patchwork,” Colby said. “The stakes are high for the employee obviously. It helps the employees where the disparity and bargaining power is so lopsided in favor of the employer. It gives the employees a little more knowledge to act.”

Others fear the broadness of the rule attempts to apply protections to workers not currently covered by federal laws, and could potentially increase the number of workers hospitals would have to accommodate.

“My worry is that will lead people to assert objections thinking that they’re covered when in fact they may not be,” Robin Wilson, a family and health law professor at the University of Illinois said.

Some of the statutes the rule draws on are specific about what kind of worker they apply to, but the rule implies that more individuals who don’t have direct contact with certain procedures could be granted accommodations, like schedulers or people who prepare IV bags, Wilson said.

Those kind of requests could fall flat if the statute doesn’t support them or they’re contrary to state law, she said.

State anti-discrimination laws on the books could complicate the picture for religious beliefs in the health care context, said Kelley Drye employment attorney Mark Konkel said. He said this creates a “hodge-podge” regulatory environment for employers to navigate. Several states and local governments, for example, outline specific civil rights protections for gay and transgender workers.

“Employers face a choice from a compliance standpoint, it’s difficult to administer policies based on jurisdiction and it opens employers to claims of discrimination,” Konkel said.

To contact the reporters on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com; Madison Alder in Washington at malder@bloomberglaw.com

To contact the editors responsible for this story: Cheryl Saenz at csaenz@bloombergtax.com; Jay-Anne B. Casuga at jcasuga@bloomberglaw.com