The Contraceptive Coverage Battle Rages On. Here’s What You Need to Know

Two major announcements out of Washington, D.C. last week will affect employers nationwide. Here’s what you need to know.

Announcement #1: More Employers Can Claim Exemption from Contraceptive Coverage

The Department of Health and Human Services rewrote federal policy to allow employers to deny their employees insurance coverage for birth control, if the employer objects to contraception on religious or moral grounds.

There had previously been a workaround option for a small percentage of employers. “The Obama administration created an exemption for churches and allowed other ‘religious employers’ to opt out by notifying the government,” NPR reports. But even in this scenario, the government still made it possible for employees to receive care. “The administration would arrange with their insurance companies to provide the coverage directly, without the employers’ involvement.”

According to The Washington Post, the new rules give broader leeway to who can religiously object to birth control coverage. “They now encompass nonprofit organizations and for-profit companies, including ones that are publicly traded.”

“Also included are higher educational institutions that arrange for insurance for their students, as well as individuals whose employers are willing to provide health plans consistent with their beliefs.”

What does this mean for employers?

“It’s unclear how many organizations will now look to drop birth control coverage from their insurance plans,” Politico said.

“In the aftermath of the Supreme Court’s 2014 Hobby Lobby ruling that closely held private companies could seek an exemption on religious grounds, only a few dozen employers requested one from the Obama administration.”

Announcement #2: Employers May Discriminate Against Women, LGBTQ People on Religious Grounds

At the same time as the birth control announcement, Attorney General Jeff Sessions also sent a major memo outlining how both employers and employees can now argue legal exemption from federal nondiscrimination laws, if the laws are contrary to their religious beliefs.

According to The Hill, “the memo claimed that the government can likely prohibit religious groups from discriminating on the basis of race but may not be able to prohibit other forms of discrimination,” including sexual orientation.

“The new initiatives came a day after Mr. Sessions changed the Justice Department’s position on a related issue,” says The New York Times, “whether a ban on workplace discrimination on the basis of ‘sex’ in the Civil Rights Act of 1964 encompasses discrimination on the basis of gender identity.”

“The Obama administration had adopted the view that it does cover transgender people, but Mr. Sessions said the department should take the position in court that it does not.”

What does this mean for employers?

Organizations may discriminate in hiring, including only hiring people who adhere to specific religious beliefs—even if the organization receives government funding or contracts.

Companies can fire employees whose personal lives do not align with the beliefs of the organization. Employers could legally “fire an unmarried employee who becomes pregnant, or an employee who marries a same-sex partner,” said The New York Times. “Religious contractors that administer foster care programs could refuse to place foster children with gay couples, even in states that have nondiscrimination laws.”

“A hotel could argue that providing service to Muslim or Jewish customers violates the owner’s faith and that the hotel should be exempt from complying with federal law barring such discrimination,” said the ACLU.

“And the funeral home currently arguing in federal court that it has a right to fire an employee because she’s transgender could have a free pass to discriminate because of its religious beliefs.”

The memo also states that the government cannot “second guess the reasonableness of a religious belief.” “Because the memo gives maximum latitude to invocations of religious belief,” The Atlantic wrote, “it could limit discrimination claims made by gay, lesbian, and transgender Americans.”