All That Glitters is Not Subject to Employment Laws

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What do glitter, unpainted wooden hearts, colored Popsicle sticks and lawyers have in common? No, this isn't a tired lawyer joke that pokes fun at the legions of attorneys dedicated to helping their clients navigate the rules and regulations of our country (would I do that to you?) — and the question is not rhetorical.

The answer is employment law, specifically the U.S. Supreme Court ruling in the case of Burwell v. Hobby Lobby Stores. (The case originally was named Sebelius v. Hobby Lobby Stores until U.S. Department of Health and Human Services Secretary Kathleen Sebelius resigned and was replaced by Sylvia Burwell.)

In Hobby Lobby, the court narrowly decided (5-4) that HHS cannot force closely held corporations to give their employees health insurance coverage for contraception forms that the corporations oppose on religious grounds.

Specifically, the court held that such a mandate would violate the Religious Freedom Restoration Act of 1993, under which the government can only hamper the exercise of free religion if it uses "the least restrictive means of serving a compelling government interest."

Under the Affordable Care Act (also known as — not so affectionately, perhaps — Obamacare), employers of 50 or more people are required to offer health care that includes certain benefits, including FDA-approved contraception. Most of the FDA-approved contraceptive methods simply prevent fertilization of the egg, but four of the methods work by preventing an already-fertilized egg from attaching to the uterus.

The law exempts religious groups (such as churches and religious orders); religious nonprofits; employers with grandfathered health plans that don't cover contraception; and, of course, employers with less than 50 employees.

In the case of religious groups and nonprofits, the female employees still have access to all FDA-approved conception, but the law puts the onus on insurance companies instead of employers to offer such services.

Hobby Lobby and the other defendants opposed, on religious grounds, the four contraceptive methods that prevent attachment of the fertilized egg. The defendants are for-profit corporations closely held by family members who hold deep religious principles.

As noted, the court ruled against the government in the case. The overall decision itself is important, but there are also several important points of note in the ruling.

The court decided that the law applies not just to individual people, but also to corporations, as, essentially, representatives of the people who form them. The court found that the law never intended to give small businesses a choice of either religious freedom or the business benefits of corporations. In particular, the ruling applies to closely held corporations.

The court also rejected the idea that for-profit corporations are only out to make money and thus should not receive the protection of free exercise of religion as do nonprofits. The court held that since the law could be tweaked to work for nonprofits, it could also be tweaked to work for for-profits in the same way, which would be the least restrictive means of fulfilling the government interest in affordable health care for all.

The justices also held that the contraceptive mandate is a burden on the free exercise of religion because of the tremendous amount of penalty money that businesses would have to pay for not providing full contraceptive coverage to their employees. The court noted that none of the alternatives were reasonably feasible.

Why should attorneys care about all of this?

Lawyers who own their firms are not just lawyers, they are also employers. As such, they are subject to employment laws. All employers of 50 or more employees should be familiar with the Affordable Care Act — and court cases like Hobby Lobby that impact the way in which the ACA is implemented.

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