Business owners should be aware that the Department of Health and Human Services (HHS) has recently issued a religious and moral exemption to the Affordable Care Act’s (ACA) birth control mandate that can be used by nearly any business.
This mandate originally took effect in 2012 based on the recommendation of an independent panel to require plans to cover birth control at no cost.
Despite a number of attempts by both the administration, and the Supreme Court, to reach an accommodation for religious organizations, the issue remained unresolved (until now).
Related: In 2016, the Supreme Court kicked the contraceptive can down the road
The two new rules expand the initial scope of the exemption from houses of worship, religiously affiliated nonprofits, and “closely held” private companies to include for-profit companies and publicly traded companies to apply for an exemption. For those seeking the exemption, one shortcut is to call your insurance company to ask for guidance.
Employers will not need to file notices or certifications with any federal entity, and would only be required to explain to employees any changes in their coverage, and the coverage is set to take effect immediately. The new rule also applies to colleges and universities that offer insurance to students as well as employees.
This latest step follows up on an executive order issued in May where Donald Trump promises to “protect religious liberty” and provide “regulatory relief” for organizations. Health and Human services estimates that at most, 120,000 people would be impacted – mostly those who are employed at the 200 organizations involved in lawsuits over the original 2012 mandate.
Bottom line – employers will have the option to opt out on either a religious or moral objection.
However, how many of them choose to do so remains to be unseen, but could eclipse the conservative 120,000 people estimated by HHS.
Companies deciding to opt out of coverage should be aware that this mandate is likely to be met with a series of legal challenges by both women’s rights and other organizations, including the American Civil Liberties Union, who filed for a lawsuit on Friday, October 6th.
The lawsuit claims the new mandate violates the equal protection clause and the establishment clause. The California Attorney General also indicated intentions to offer legal opposition.
Knowing about the upcoming legal challenge is something that employers should be considering before making any substantive changes. This is likely to be a bumpy and long legal battle.
