Let's Talk About The HHS "Conscience" Protections For Healthcare Employees

by Constangy, Brooks, Smith & Prophete, LLP

Here's what employers need to know.

Yesterday, the U.S. Department of Health and Human Services and its Office of Civil Rights announced that they would be enhancing the legal protections for healthcare workers with religious or moral objections to certain procedures or treatments.

The new Conscience and Religious Freedom Division of the OCR will receive, investigate, and try to resolve claims by healthcare employees who believe they have been discriminated against or are being coerced to provide certain treatments that conflict with their religious or moral beliefs.

What's the legal basis for this new division?

The First Amendment to the U.S. Constitution of course protects the free exercise of religion without interference by the federal government, and Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on religion and requires reasonable accommodation in some circumstances.

Religious conscience protections specifically aimed at healthcare workers have been in place for approximately 20 years and arise from a number of federal laws, but enforcement of those protections arguably weakened during the Obama Administration. The Obama Administration's more aggressive stance favoring women's reproductive rights and LGBT rights were sometimes seen to be in conflict with the beliefs of healthcare workers.

In May 2017, President Trump issued an Executive Order, "Promoting Free Speech and Religious Liberty." The EO says, "It shall be the policy of the executive branch to vigorously enforce Federal law’s robust protections for religious freedom."

According to yesterday's announcement of the new Division by HHS Acting Secretary Eric Hargan,

“[F]or too long, too many healthcare practitioners have been bullied and discriminated against because of their religious beliefs and moral convictions, leading many of them to wonder what future they have in our medical system.

The federal government and state governments have hounded religious hospitals and the men and women who staff them, forcing them to provide or refer for services that violate their consciences, when they only wish to serve according to their religious beliefs.

What areas of healthcare conflict with traditional religious beliefs?

The primary "problem" areas for healthcare workers with traditional religious beliefs -- as well as for their employers, if the employers are faith-based -- are reproductive rights (providing or assisting with abortions, voluntarily sterilizations, or in vitro fertilization or artificial insemination, and, in some cases, prescription or administration of contraceptives), assisted suicide in jurisdictions where that is legal, and providing or assisting with gender reassignment treatment or surgery. 

So, what does this announcement mean? Say an OB/GYN nurse refuses to assist with an abortion.

Presumably, the employer would be required to allow the nurse to opt out of assisting with the procedure. It would not be allowed to "penalize" her in any way for doing so -- for example, by scheduling her for work less frequently, or disciplining or terminating her for refusing to participate. However, I would think that the employer could take into account that this particular nurse objects to participating in abortions and could make sure there were plenty of nurses on duty who did not have those objections.

Does this apply to anyone besides nurses?

Yes. It applies to physicians, nurses, and presumably any healthcare workers with religious objections. As Acting Secretary Hargan made clear, it also applies to medical students who have such objections.

Some people on social media are saying that this means a healthcare worker could refuse to provide any treatment to, for example, a gay or transgender person just because that person is gay or transgender. Is that right?

I seriously doubt it. In fact, I will be shocked if that turns out to be the case. If a gay or transgender person came to the hospital with, say, pneumonia, I would expect healthcare workers - even those with traditional religious beliefs - to treat that person just as they would any other patient with pneumonia. Even in the highly unlikely event that the worker refused to do so and filed a complaint, I would not expect this new Division to support the worker.

However, some commenters have pointed out that a healthcare worker might have a religious objection to assisting the transgender patient in the transition itself (for example, by assisting in a hysterectomy performed on a transgender man, or prescribing or administering male hormones to him). Or a healthcare worker might have a religious objection to assisting a same-sex married couple with artificial insemination. I suspect that these types of religious objections would be supported by the new Division.

You keep saying "I suspect," and "I think," and "presumably." Why are you waffling so much?

You are right! I am waffling because no actual guidelines were issued yesterday. I suspect (sorry!) that regulations or some form of guidance will be forthcoming, and that it will provide more specific information for healthcare employers trying to handle religious conscience issues.

If a healthcare employer refused to accommodate an employee who had a religious objection to performing a certain procedure, couldn't that employee also go to the Equal Employment Opportunity Commission?

Yes, as long as the employer was covered by Title VII (had at least 15 employees). The EEOC would ask (1) whether the employee had a sincerely held religious belief or obligation that conflicted with the work requirement, (2) whether the employer was aware or should have been aware of that conflict, (3) whether the employer accommodated the employee, and (4) if not, whether accommodating the employee would have been an undue hardship for the employer. It could be that the OCR Division will ultimately follow the same analysis. 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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