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Agencies Propose Changes to Contraception Mandate for Religious Employers

The IRS, DOL, and HHS have proposed two key changes in the rules that exempt certain religious employers from complying with the mandate to cover all FDA-approved contraception and sterilization procedures for women (see proposed rules here). 

1. Definition of Religious Employer

Employers that are "religious employers" are wholly exempt from compliance with the mandate. The new rules would modify the definition of religious employer slightly. The definition would still be limited to houses of worship (churches, synagogues, mosques, and the like) and religious orders. But the change would clarify that those organizations will not fail to be religious employers even if they also provide educational, charitable, or social services, without regard to whether the persons served share the same religious values.

Example. A church with a parochial school that employs teachers or serves students who are not necessarily of the same religious faith may still qualify as a religious employer.

2. Broader Accommodation for Non-Profit Religious Organizations

A non-profit organization that is not a church or religious order but that meets specified criteria would be provided an "accommodation" exempting the organization from directly providing contraceptive coverage. The criteria are:

  • The organization opposes some or all of the required contraceptive coverage on religious grounds
  • The organization is a non-profit entity
  • The organization holds itself out as a religious organization
  • The organization self-certifies that it meets the first three criteria

This change is intended to exempt organizations such as religious-affiliated non-profit institutional health care providers, educational institutions, and charities from a direct requirement to provide contraceptive coverage.

Individuals covered under a plan sponsored by one of these organizations would, however, be provided with access to contraceptive coverage through an individual insurance policy made available to them through either the plan's insurance carrier (in the case of an insured plan) or a separate insurance carrier that has agreed to provide the coverage (in the case of a self-insured plan). Neither the employer nor the covered individual would be required to pay a premium for access to this coverage, although the details on exactly how that will work remain somewhat unclear.

No Change for For-Profit Employers. None of these changes affect the application of the mandate to for-profit employers. So Hobby Lobby and other like-minded companies are still left to battle the mandate in court. 


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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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