January 23, 2018

New HHS Conscience and Religious Freedom Division to Aid Healthcare Workers With Moral Objections

 

Steven T. Collis

By Steven T. Collis

This week, the U.S. Department of Health and Human Services (HHS) announced that it created a new division within its Office for Civil Rights to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” The new Conscience and Religious Freedom Division intends to vigorously enforce existing federal laws that protect healthcare workers who object to performing or assisting with services on the basis of their religious or moral beliefs. With increased attention and support for such objections, healthcare facilities and employers need to be prepared in how to respond when an employee objects or refuses to perform certain procedures.

Conscience and Religious Freedom Protections

The new HHS Division expects to increase enforcement of existing religious protections for health and human services providers. Existing federal laws offer conscience protections to health care providers who refuse to perform, accommodate, or assist with certain health care services on religious or moral grounds. These existing laws include protections related to providing sterilization, abortion, assisted suicide, and related training and research activities.

Existing federal laws also prohibit discrimination in employment for recipients of HHS federal financial assistance, under laws such as the Social Security Act, the Public Health Service Act, and the Family Violence Prevention and Service Act. These provisions protect health care workers from employment discrimination, including religious discrimination, related to federally-funded programs such as the Maternal and Child Health Services Block Grant, Projects for Assistance in Transition from Homelessness, and Community Mental Health Services Block Grant and Substance Abuse Prevention and Treatment Block Grants.

In the prior administration, many of these protections were not prioritized. Under the new rule, the Office of Civil Rights “will have the authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in civil rights law to address violations and resolve complaints.” As part of that authority, the Office may require, for certain recipients of federal money, that they keep more robust records; cooperate with investigations, reviews, and other enforcement actions; provide assurances and certifications of compliance; and issue notices to their employees regarding their conscience and anti-discrimination rights.

What This Means For Healthcare Providers and Their Employers

The increased enforcement of religious and moral protections anticipated by the new HHS division may empower more healthcare workers to express objections to perform or be involved with certain procedures or services. Healthcare employers should have a plan in place for how to respond to such objections. That plan should include providing reasonable accommodations to objecting workers, which involves documenting the objection, analyzing how to transfer duties to another worker, determining whether objectors need to be reassigned, and establishing how communications to co-workers will be handled. These can be sensitive discussions so healthcare facilities need to consider how to address these issues in advance. In particular, employers must learn how to accommodate the workers’ objection without adversely affecting their position, as the adverse action could potentially be seen as discriminatory based on the worker’s religious beliefs.

Finally, it will be important that healthcare employers keep proper records regarding their compliance efforts and stay abreast of what notices they are required to provide their workers and the government. Employers should keep a watchful eye to ensure they know precisely what will be required of them in the months ahead.

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