Post-ACA, Employer Obligation May Stand for Pregnant, Nursing Women

March 20, 2017Articles The Legal Intelligencer

The Patient Protection and Affordable Care Act (ACA) has been a source of contention for many Americans since former President Barack Obama signed it into law on March 23, 2010, see Kaiser Health Tracking Poll: The Public's Views on the ACA. The Henry J. Kaiser Family Foundation, (Jan. 6). Specifically, one of the most controversial requirements of the legislation for employers and employees alike has been the requirement that employer-sponsored health insurance plans provide certain women's health services including contraceptive, prenatal, and ­postpartum coverage at no cost to the insured.

Although employee-rights and women's health advocates largely praised these measures, many business proponents ­expressed concern. Small companies argued that such mandates were too expensive and would have a negative impact on job creation. Separately, Christian owners of some closely held, for-profit corporations ­challenged the ACA's mandate that employer-sponsored health insurance plans cover contraception, as in Burwell v. Hobby Lobby, 132 S. Ct. 2751 (2014).

Given Americans' lack of consensus, it was no surprise that the fate of the ACA was debated fiercely throughout the 2016 presidential campaign. Indeed, one of President Donald Trump's central election promises was to repeal and replace the ACA. Though it is unlikely that a full repeal will happen anytime soon, Trump and the Republicans in Congress appear to be laying the groundwork to make good on this pledge to their constituents at some point in the future.

While the end result of Trump's attempt to overhaul the ACA remains to be seen, changes to the ACA may be forthcoming with respect to employers' obligations to provide insurance plans that offer no-cost women's health services. Notably, Seema Verma, Trump's nominee to administer the Centers for Medicare & Medicaid Services, testified during her confirmation hearing that women should be able to choose whether or not they wish to have maternity and newborn coverage as part of their health insurance.

Nonetheless, should Trump's new health law eliminate employer-sponsored health plans that guarantee no-cost women's health services, it is important for employers to bear in mind that they will still be required to comply with other sources of federal legislation, as well as applicable state and local laws, that offer protections to pregnant women and new mothers. Accordingly, now is an ­opportune time for employers to review their ­current obligations under the ACA and other ­relevant laws so that they will be as prepared as possible to revise workplace policies as developments in the law unfold.

Employee Protections under the ACA

The ACA mandates that all employer-sponsored health ­insurance plans offer certain no-cost women's health care services including preventive, pregnancy, maternity and newborn care. Previously, employer-sponsored plans only had to ensure certain women's health care services were offered at the same cost as treatment for other similar medical conditions.

Particularly, as to preventive care services, the ACA requires screening and counselling for: breast cancer, contraceptive planning, sexually transmitted diseases, domestic violence and tobacco use. Annual well-woman gynecological visits must also be provided. Further, pregnant women and women who may become pregnant must have access to contraception (this does not apply to certain "religious employers" and depends on state law) and folic acid supplements.

Moreover, the ACA requires that ­employers make breastfeeding easier for new mothers. Specifically, all employer-sponsored health insurance plans (with the exception of grandfathered plans) are to provide breastfeeding support and counselling services and equipment for the duration of breastfeeding, including the cost of a breast pump. Additionally, the ACA amended Section 7 of the Fair Labor Standards Act to require ­employers to provide an employee with "reasonable break time ... to express breast milk for her nursing child for one year after the child's birth each time such employee has need to express the milk and a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public," 29 U.S.C. Section 207(r) (2017). Employers must ensure that they comply with this break accommodation requirement to the same degree they accommodate employees who require breaks for other medical conditions.

Employee Protections under other Sources of Federal Law

Regardless of what becomes of the ACA, the Pregnancy Discrimination Act (PDA) will still prohibit employers from ­discriminating against an employee on the basis of pregnancy, childbirth or related medical conditions. As such, employers that offer health insurance to their employees will still have to offer policies that cover medical expenses associated with pregnancy just as they would any other medical condition. A higher deductible cannot be charged for pregnancy and ­pregnancy-related conditions.

Additionally, employers must remember that they may have potential obligations to accommodate their pregnant employees under the Americans with Disabilities Act (ADA). The ADA prohibits employers with more than 15 employees from discriminating against employees who are disabled and requires employers to provide disabled employees with a reasonable ­accommodation if doing so will enable the employee to perform the essential functions of their job, and will not cause the employer to suffer an undue burden.

Although pregnancy is not a ­disability-qualifying impairment, women who have pregnancy-related medical conditions such as gestational diabetes, back pain and morning sickness may be protected under the ADA. Accordingly, depending upon the circumstances, ­employers will still be required to offer reasonable ­accommodations such as light duty, extra bathroom breaks or a modified work schedule to pregnant employees with qualifying "pregnancy-related conditions."

Lastly, employers' obligations under the Family and Medical Leave Act (FMLA) will remain unchanged. Under the FMLA, covered employers (50 or more employees) are required to provide all eligible employees (worked for the employer for at least 12 months for at least 1,250 hours) up to 12 weeks of unpaid leave each year for the birth and care of a newborn child of the employee, the placement with the employee of a child for adoption, to care for an immediate family member's serious health condition or for the employee's own serious health condition.

As such, employers will still be required to provide mothers with this leave, which can be used for pre-natal care, any period of incapacity related to pregnancy or to care for her child once born. Similarly, employers will still be required to allow fathers to use FMLA time to care for a spouse who is incapacitated due to pregnancy or to care for his newborn child.

Employee Protections under State and Local Law

Depending upon the state(s) in which an employer operates, it may still be required to provide employees with some of the same health care benefits as are presently required under the ACA.

For example, 28 states, the District of Columbia, and Puerto Rico have passed laws that require employers to allow ­employees who are nursing to take daily, unpaid break time to express milk in the workplace. As part of this legislation, many states also require that employers provide their employees with a private location other than a rest room to express milk.

Further, to date, at least 26 states have passed laws requiring insurers that cover prescription drugs to provide coverage for any Food and Drug Administration (FDA) approved contraceptive. Of those 26 states, 21 states offer exceptions from ­contraceptive coverage for employers in their policies, usually for religious reasons.

Moreover, 45 states, the District of Columbia, and Puerto Rico have passed laws that prohibit discrimination on the basis of pregnancy and many cities, such as Philadelphia, Los Angeles and New York City, have passed similar ordinances. Additionally, 12 states and the District of Columbia offer their own family leave laws for qualifying employees. Of those states, California, New Jersey and Rhode Island provide paid leave. New York join the ranks of these three states in 2018.

Conclusion

In short, even if the provisions of the ACA discussed herein are fully repealed, ­employers will still have obligations to support the reproductive health needs of their female employees under other laws. Although the repeal of the ACA may ­eliminate an employer's obligation to provide no-cost women's health services at the federal level, obligations may still remain at the state and local level. In light of the ­foregoing, it is recommended that ­employers consult an attorney for guidance before making any changes to their workplace policies and employee benefit programs that may impact pregnant women and nursing mothers. 

Reprinted with permission from the March 20 issue of The Legal Intelligencer. (c) 2017 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.