New "Hobby Lobby" Bill Raises Questions About What Else Employers May Be Required to Cover

July 11, 2014

House and Senate Democrats responded quickly this week to the U.S. Supreme Court's Hobby Lobby decision with legislation that would require employers to cover all health care items and services currently required by federal law and regulation, notwithstanding any religious objections.  While this may not impact most HR Policy members, the bill does raise questions about what "essential health benefits" employers may be required to cover now and in the future and the role of employers in sensitive situations.  According to the bill's chief Senate sponsor, Sen. Patty Murray (D-WA), "Your health care decisions are not your boss's business," and other proponents of the bills are framing the debate as pushing back against gender discrimination and putting employers in charge of personal health decisions.  As said last Sunday by Donna Brazile, a top Democratic strategist, "Now our bosses can tell us what we can and cannot do in order to maintain our own health and reproductive health care."  Specifically, under the "Protect Women's Health From Corporate Interference Act" (S.2578, H.R. 5051), Congress finds that "access to the full range of health benefits and preventive services, as guaranteed under federal law" requires employers to provide a full range of contraceptive benefits.  However, it is not clear what Congress means by access to a full-range of health benefits and other preventive services.  Although large employer plans are not specifically required to cover "essential health benefits" under the ACA, it is an open question what set of benefits an employer must offer to meet the Department of Health and Human Service’s minimum value standard and calculator in order to avoid the ACA's employer penalty.  Moreover, this political debate could easily shift to other health care benefits proponents believe employers should be required to cover.  Although Sen. Reid (D-NV) plans to bring the bill up for a vote next week, it faces an uncertain future in that chamber, and the House bill will likely never come up for debate this year.  Meanwhile, House Rules Committee Chairman Pete Sessions (R-TX) released a draft resolution that would authorize the House to move forward with a lawsuit challenging President Obama’s legal authority to unilaterally delay the ACA's employer mandate without congressional approval.  The resolution will likely come up for a vote on the House floor by the end of July.