HHS proposes new rule requiring employers to protect employee rights, avoid discrimination based on conscience, religious beliefs

Long-term care and other employers would need to take extra steps to protect employees’ rights and avoid discrimination based on their consciences and religious beliefs under a proposed rule announced Dec. 29 by the Department of Health and Human Services Office for Civil Rights.

“No one should be discriminated against because of their religious or moral beliefs, especially when they are seeking or providing care,” Secretary Xavier Becerra stated. “The proposed rule strengthens protections for people with religious or moral objections while also ensuring access to care for all in keeping with the law.”

Under a May 2019 rule, the so-called conscience rule, implemented during the Trump administration, individual healthcare workers as well as healthcare organizations could decline to provide care that conflicts with their religious and moral beliefs or mission.

Shortly after that final rule was announced, HHS began to face backlash on multiple fronts. Lambda Legal, Americans United for Separation of Church and State, and the Center for Reproductive Rights filed a lawsuit challenging it. The action followed the filing of a separate lawsuit against the federal government over the rule by a coalition of 23 states, cities and municipalities. Portions of the 2019 rule ultimately were held unlawful by three federal district courts.

According to HHS, the newly proposed rule would eliminate the unlawful portions of the 2019 rule “while reinforcing other processes previously in place for the handling of conscience and religious freedom complaints.”

“Protecting conscience rights and enforcing the law to combat religious discrimination is critical,” OCR Director Melanie Fontes Rainer said Dec. 29. “Today’s proposed rule would strengthen these protections and reinforce our long-standing process for handling such conscience and faith-based objections. It also would take steps to help ensure that individuals are aware of their rights.”

The proposed rule is scheduled to be published Thursday in the Federal Register, but a PDF is available now. Public comments are due 60 days after publication.