The U.S. Department of Health and Human Services (HHS) has announced the formation of the Conscience and Religious Freedom Division of the HHS Office for Civil Rights (OCR). The new division will review complaints from medical professionals who object on religious or moral grounds to participating in the provision of certain services and/or to certain patients. HHS has also released proposed regulations that would increase the OCR’s responsibility and enforcement power as to existing federal health care antidiscrimination laws involving protections for health care workers related to services such as abortion, sterilization, and assisted suicide.
Religious liberty groups have lauded the move as protecting workers’ religious freedom, while critics have expressed concern that the practical effect will be increased discrimination against certain patients, specifically women and LBGT individuals. This debate – balancing medical workers’ religious beliefs against patients’ rights not to be discriminated against – is not new, nor is litigation related to it. Past examples include a lesbian woman denied fertility services because of her sexual orientation, a pediatrician who refused to treat the child of a lesbian couple, and a nurse who objected to providing care to a woman who previously had an abortion.
The creation of this new division, and the publicity it brings to religious and moral objection issues, may stimulate an increase in health care workers’ complaints. Health care employers should, therefore, review their offered services to determine if federal nondiscrimination laws apply. Even where nondiscrimination laws do not apply directly to the services offered, health care employers should be prepared to deal with issues that may already be covered under Title VII’s religious exemption provisions. While employers likely have dealt with more common religious exemption issues such as requests not to be scheduled on days of religious observation or permission to wear a head covering, they should also consider potential scenarios such as an employee who objects to providing care to transgender patients because of religious or moral beliefs about sex. While such issues could have been raised previously, health workers now have an additional avenue to pursue such complaints against employers in the Conscience and Religious Freedom Division of the HHS.
Health care employers should be aware of the activities of HHS, as the formation of the new division and the promulgation of the proposed regulations may stimulate an increase in health care workers’ complaints of religious and moral objection issues. If you have any questions regarding this Alert or other labor or employment issues impacting health care employers, please feel free to contact the author, Allyn Jaqua Lowell, alowell@fordharrison.com, counsel in our Dallas office. Of course, you may also contact the FordHarrison attorney with whom you usually work.