More To Come

May 7, 2002
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WASHINGTON, D.C. – A recent decision by the U.S. Equal Employment Opportunity Commission (EOCC) says the 1978 Pregnancy Discrimination Act (PDA) “does not require that all employers provide contraceptives to their employees through their health plans.”

But what the commission said the act does require is “that employers provide the same insurance coverage for prescription contraceptives that they do for other drugs, devices or services that are used to prevent the occurrence of medical conditions other than pregnancy.”

On the face of it, that sounds as if the decision would require a firm with health insurance that pays for, say, vaccinations or mammograms to also provide coverage of contraceptives.

But Gregory M. Palmer, of Dickinson Wright LLC, declines to speculate on the precise impact of the EOCC ruling because he said every company’s group insurance policy is its own special case.

Palmer, who is the manager for the law firm’s Lansing and Grand Rapids labor and employment practice group, said he recommends that corporation attorneys conduct a four-step due diligence examination to determine whether the EOCC’s decision requires that a firm expand its coverage to embrace such prescriptions.

He defines the examination as:

1. Reading the actual language of the company’s insurance plan. “By that,” he said, “I mean the words of the insurance contract, not what you think you read or what you think you remember from a year ago.”

2. Finding out the basis for that language. “In other words, was the language a matter of actuarial determination by the insurance company? Or was it something that the company wanted spelled out in the contract? Or did it just happen that way?”

3. Determining exactly how the language of the company group insurance contact fits with the language of EEOC decision.

4. Determining how the words of a group insurance contract match the language of Title VII of the Civil Rights Act of 1974 as amended by the Pregnancy Discrimination Act.

Too, he said, the company should examine its group health insurance contract from the perspective of the Americans With Disabilities Act and against the Michigan laws that parallel it and the Pregnancy Discrimination Act.

Finally he stressed that the company’s managers should conduct its due diligence inquiry with all the appropriate attorney-client privileges in place.

“A health insurance contract is like any other contract and should be treated as such,” Palmer said. “This is an important matter that affects both the employer and the employees.”

Palmer said the Dec. 14 EOCC decision was based on two cases involving registered nurses employed at separate firms. Each woman filed complaints that her employer’s group health insurance did not cover oral contraceptives or contraceptive injections, even though both policies provided coverage of a number of preventive health measures.

It happened that both employers also provided coverage of surgical birth control: vasectomies for men and tubal ligations for women.

The EOCC reached its finding after noting that the PDA explicitly prohibits discrimination against women because they can become pregnant. From that, the EOCC said it follows that the act therefore prohibits discrimination related to any prescription means of controlling whether pregnancy occurs.

Referring again to the act, the EOCC said that inasmuch as it is unlawful to discharge an employee from employment because she uses contraceptives, so too the agency ruled that employers may not discriminate in health insurance coverage by exempting prescription coverage.

The agency says yet another element of the PDA buttresses its decision: namely, the act’s exemption of employers from any obligation to offer health benefits for abortion in most circumstances.

“Congress understood,” the EOCC bulletin reads, “that absent an explicit exemption, the PDA would require coverage of medical expenses resulting from a woman’s decision to terminate a pregnancy … had Congress meant to limit the applicability of the PDA to contraception, therefore, it would have enacted a statutory exemption similar to abortion exemption."

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