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The Leave vote in the EU referendum presents several potential challenges for employers which are of far more immediate and practical importance than speculation about the future direction of employment law in a post-EU environment.

The post Employment law: Post-Brexit appeared first on OUPblog.

By Edward Zelinsky

Among the bitter but unnecessary controversies of this election year was the dispute about the federal government’s mandate that employers provide contraception as part of their health care coverage for their employees. Employers religiously opposed to contraception believe this mandate infringes their right of Free Exercise of religion under the First Amendment. Advocates of the contraception mandate characterize it as vital to women’s health and choice.

This acerbic controversy is totally unnecessary. This dispute can be diffused by health savings accounts (HSAs) or similar employer-funded medical accounts under the employee’s control. Such a solution should be appealing to political leaders committed to civil discourse and mutual respect for opposing views. Unfortunately, such leaders appear to be in short supply.

Substantively, the most recent event in this controversy is the decision of US District Judge Reggie B. Walton. Judge Walton recently held that the contraception mandate violated the rights of Tyndale House Publishers, Inc., a Christian publishing company opposed on religious grounds to certain of the mandated forms of contraception. Judge Walton held that the contraception mandate violates the Religious Freedom Restoration Act.

Earlier in the year, Missouri’s legislature, overriding the veto of Governor Jay Nixon, declared that Missouri employers religiously opposed to contraception need not provide contraception as part of their employees’ medical coverage. This Missouri law directly defies the contrary federal mandate adopted as part of President Obama’s health reform package.

On this issue, serious and sincere people come to different conclusions. These differences can be accommodated by requiring employers with ethical or religious qualms about any particular type of medical care to fund HSAs or similar accounts under employees’ control. Such accounts enable the employees to make their own decisions about the medical services such employees obtain with their employer-funded health care dollars.

HSA supporters tout such accounts to control medical costs and to increase consumer autonomy. But HSAs can also diffuse religious and ethical controversy by shifting contentious choices from employers to employees.

If employers have religious or ethical scruples about providing contraception or other medical services, they should instead pay into independently-administered HSAs for their employees. Employees who want these services could then purchase such services with the pre-tax funds in these accounts – just as such employees can today purchase these services with their post-tax salary dollars.

Like all compromises, this proposal is imperfect. A religious employer might object that it knows that its payments to independently-administered HSAs are underwriting services to which the employer objects. But the employee can use his or her salary dollars in ways to which the employer objects. At some point, the religiously sincere employer must acknowledge that control of compensation has shifted from the employer to the employer’s employees. And health care dollars are part of the employee’s compensation package.

The proponents of birth control and other similar medical services can object that employees purchasing such services through HSAs or similar accounts will pay more than employers who can purchase such services more cheaply because of economies of scale. That is an argument for improving the operation of the market for medical services through better information about the prices of such services and for the proponents of such services to themselves harness economies of scale by aggregating purchasers.

Many details must be decided before implementing this proposal. Most obviously, we must decide how much the religious employer must contribute to each employees’ HSA for the employer to be released from the mandate he considers religiously objectionable. This concern, like others, can be resolved by those committed to civil management of our differences.

While the public discussion has to date been stimulated by employers religiously opposed to providing contraception and abortion services, there may be other employers whose religious convictions preclude them from providing other kinds of health care services. Some employers who are Christian Scientists, for example, might object to some or all of the package of medical services being mandated by the federal government. If so, these employers should also be given the alternative of funding HSAs or other similar accounts which shift control of health care dollars to the employees.

A genuinely diverse society must be tolerant of genuine diversity. In this spirit, employers with religious objections to particular medical practices and services should be given the alternative of funding employees’ HSAs instead.

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. His monthly column appears on the OUPblog.

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