Earlier this summer the U.S. Department of Health and Human Services Office of Civil Rights (“OCR”) released new guidance (“Guidance”) directed at retail pharmacies that details obligations to ensure comprehensive and nondiscriminatory access to reproductive health care services.
This Guidance comes on the heels of a slew of recent legal changes, namely the Dobbs v. Jackson Women’s Health Organization decision and President Biden’s attempt to protect access to reproductive health care services through an executive order. The Guidance is also closely followed by a U.S. Department of Health and Human Services (“HHS”) proposed rule (“Proposed Rule”) strengthening discrimination protections under Section 1557 of the Affordable Health Care Act (“ACA”). Despite having no enforcement power on its own, the Guidance reflects the questions and concerns of many health care providers regarding the possibility of OCR civil rights violation investigations.
Anti-Discrimination Obligations
The Guidance highlights pharmacy obligations under two federal civil rights laws. According to OCR, for millions of Americans, pharmacies are the “most accessible health care provider.” Therefore, OCR is committed to “vigorous enforcement” of Section 1557 of the ACA (“Section 1557”), which prohibits recipients of federal financial assistance from discriminating against patients for a variety of reasons, specifically, sex, and Section 504 of the Rehabilitation Act of 1973 (“Section 504”), which prohibits similar recipients from discriminating against patients based on disability. While the Guidance outlines that discrimination based on access to reproductive health care, pregnancy or related conditions is sex discrimination, HHS’s recent Proposed Rule clarifies that discrimination based on sex also specifically includes pregnancy termination. The Guidance also provides various examples of discrimination on the basis of sex such as a pharmacy that provides contraceptives designed for use by males but refuses to fill prescriptions for contraception designed for use by females.
Guidance Examples
The Guidance provides various examples of discrimination, but two outlining sex discrimination and contraceptive access are noteworthy. Pharmacies may be discriminating on the basis of sex if they otherwise provide contraceptives designed for use by males but refuse to fill prescriptions for contraception designed for use by females:
- An individual who presents a prescription for an emergency contraceptive at their local pharmacy to prevent pregnancy; or
- An individual with a prescription for hormonal contraception (e.g., oral contraceptive pill, emergency contraception, a patch placed on the skin, a contraceptive ring or any other FDA-approved contraceptive product for use by females).
Employer Considerations
The Church Amendments protect health care employees from discrimination based upon their religious or moral beliefs regarding abortions or sterilizations. Certain state laws extend similar, if not broader, employee protections. Title VII of the Civil Rights Act, and many state fair employment laws, prohibit discrimination against employees and require reasonable accommodation of sincerely held religious beliefs, observances and practices.
It is important to have policies in place that anticipate increased employee use of these laws and regulations. A “Religious/Moral Objection” or similar policy can allow for employee requests for religious or moral-based exemptions while providing a requirement of advance notice, a procedure to address potential gaps in customer care, clear direction in the event of emergencies, etc.
Practical Takeaways
In light of the Guidance, we encourage employers to consider the following:
- Ensure policies are up to date for employees who request exemption from duties for religious or moral reasons;
- Watch for additional state and federal changes in law and regulation (e.g., Final Rule on Section 1557 and/or states incorporating termination of pregnancy as protected class); and
- Recognize that any policy limiting services or goods to one gender could risk violation of several federal and/or state anti-discrimination laws from both a patient and employee perspective.
If you would like assistance with the policies referenced above, please contact:
- Robin Sheridan at (414) 721-0469 or rsheridan@wp.hallrender.com; or
- Your primary Hall Render contact.
Special thanks to Anna Malcolm, Summer Associate, for her assistance in the preparation of this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot give legal advice outside of an attorney-client relationship.
