Hall Render – Conscience Rule and Protected Employees


The DFW Hospital Council posts guest blogs by Associate Members. The following was provided by Hall Render.

By Robin Sheridan and Lindsey Croasdale

On May 2, 2019, the U.S. Department of Health and Human Services (HHS) Office of Civil Rights (OCR) announced the issuance of the final conscience rule, which prohibits discrimination of individuals on the basis of their exercise of conscience in HHS-funded programs. On May 21, 2019, HHS published the final rule in the Federal Register. This rule is effective July 22, 2019.

This final rule replaces a 2011 rule with the aim of strengthening the enforcement of conscience and anti-discrimination laws protecting certain health care providers who refuse to participate in health care services they find religiously or morally objectionable. The rule implements several statutory provisions that the final rule refers to collectively as the “Federal conscience and anti-discrimination laws” (“New Conscience Rule”). In general, these laws provide conscience protections to certain employees when those employees refuse to participate in certain services, such as abortion, sterilization, the provision of compulsory health care services generally (e.g., vaccinations) or the performance of advanced directives and the provision of assisted suicide.

All employers who receive funding from HHS are subject to the New Conscience Rule. If your organization receives Medicare, Medicaid or HHS program-specific grants, you are impacted.

There is no private right of action under the New Conscience Rule. This means that an employee cannot sue an employer on the basis of a violation. The New Conscience Rule does, however, allow any employee to file a complaint with OCR. The rule also requires OCR to promptly investigate all complaints. Be aware that the New Conscience Rule does not change an employee’s existing remedies under Title VII of the Civil Rights Act and applicable state anti-discrimination laws.

Penalties for noncompliance can include temporary or permanent withholding or termination of federal financial assistance or other federal funds, referral to the U.S. Attorney General to enforce rights of the U.S. or any other remedies legally available. Noncompliance would be published and could also jeopardize an entity’s employee, patient and community relationships.

In addition to complying with their statutory obligations, the New Conscience Rule requires covered employers to maintain records, cooperate with OCR’s investigations and compliance reviews and submit written assurances and certifications of compliance to HHS. The rule also prohibits retaliation against those asserting their rights. While employers are not required to post a notice of rights, a voluntary posting is encouraged.

It is yet to be seen how broadly the New Conscience Rule will be interpreted. Commenters expressed confusion as to how the Emergency Medical Treatment and Active Labor Act (“EMTALA”) and federal anti-discrimination statutes, such as section 1557 of the Patient Protection and Affordable Care Act (“ACA”) will interact. For example, would the rule allow an employee to refuse to treat a patient based upon his or her sexual orientation if providing health services to them conflicts with the employee’s religious directives?

In addition to the New Conscience Rule issued at the federal level, individual states have introduced further protections. The Texas legislature, for example, in its most recent session introduced bills to protect religious organizations from retaliatory action by the government on the basis of an organization’s belief that marriage is the union of one man and one woman, and the terms “male,” “man,” “female,” and “woman” refer to an individual’s biological sex at birth.

The New Conscience Rule is currently being challenged in court by a coalition of 23 states, cities, and municipalities.

Between the pending court cases, there is a lot of uncertainty as to how these rules will intersect, be interpreted, and be applied. We recommend:

• Health care employers not refuse to hire someone, exclude an employee from an area of practice, terminate employment, demote an employee, deny benefits, impose a penalty on or otherwise adversely treat an employee on the basis of his or her protected objections.

• Health care employers provide reasonable accommodations to protected employees.

• Weigh risks and benefits as employers consider whether to require protected employees to disclose religious objections once they are hired.

• Use alternate staff or methods. In other words, the objecting RN may be replaced in the OR for that procedure but cannot be transferred to a different medical or surgical floor without the employee’s agreement.

This information is provided solely for educational purposes and does not constitute legal advice. If you have questions about the New Conscience Rule, please don’t hesitate to contact:

Robin Sheridan at rsheridan@hallrender.com;
Lindsey Croasdale at lcroasdale@hallrender.com; or
• Your regular Hall Render attorney.

Visit the Hall Render Blog at http://blogs.hallrender.com/ for more topics related to health care law.