Julie Delegal: Employers, paychecks, insurance, and birth control

The law on employer-paid health care has taken some strange twists in light of the U.S. Supreme Court’s 2014 decision in Hobby Lobby. Its follow-up case, Zubik v. Burwell, is before the high court now. But is there a way to reconceive health benefits as pay — and therefore as something employers have no control over once it’s disbursed?

In a bizarre feat of judicial gymnastics, five of the nine justices agreed in Hobby Lobby that corporations are people, too. As people, they have the right to profess religious preferences, the court reasoned. And as people, the court said, corporations may express their religious preferences by choosing which medical items will and won’t be covered by their employees’ health benefits. Specifically, Hobby Lobby wanted to avoid paying into group health insurance plans in which contraceptives are covered as medical treatments.

Now, the high court has heard arguments on both sides of Zubik v. Burwell, pursuant to the Hobby Lobby decision two years ago. Newspaper accounts are predicting a 4-4 split on the issue of whether the Affordable Healthcare Act goes far enough in accommodating employers who raise religious objections to paying for insurance plans that include contraceptive coverage. As it stands now, companies simply notify the government of their religious objections, and the government arranges for free contraceptives using the healthcare exchange. The plaintiffs in Zubik contend that having to file any paperwork at all goes against their religious tenets.

But has the government gone too far in trying to accommodate religious objectors? Instead of getting caught up in how far the government should go to relieve a corporation’s conscience, couldn’t we simply reconceive our legal understanding of health benefits?

Corporations offer health benefits to their employees as part of an overall pay package. The reason insurance is doled out in employer health groups is directly related to risk management for insurance companies: larger groups usually mean lower risk. Lower risk means less expensive insurance costs. Having the opportunity to be part of a group that lowers insurance costs is one way employees get paid for their work.

Can we think of a company’s block payment to a health insurer as a substitute for the cash that its insured employees would otherwise pay to the insurer?

If we reconceive insurance benefits as pay, instead of as an act of benevolence that is solely under the purview of the employer, the next logical step is to understand that an employer can’t control how an employee spends her paycheck. And if an employer can’t dictate what an employee buys with her money, it shouldn’t be permitted to control how she spends her health-care benefits, either.

Religious corporations should have no more control over health benefits than I did over the cash I paid to the older gentleman who used to cut my lawn. He told me once, “Ms. Julie, I don’t drink,” which of course translated, for this particular gentleman, into “I have trouble with alcohol.”

Assuming his addiction put me in a moral quandary, I might have tried to find a way to control the way Mr. Lawncutter spent the money I paid him for work done. Could I insist that he spend the money only on wholesome things like rent and food, and not beer or liquor?

Perhaps as part of my pay package I could offer holiday bonuses in the form of Publix gift cards. Publix sells a lot more than groceries, however, just as health insurance companies cover a lot more than doctors’ visits and hospital stays. Is it fair to ask Publix to issue a gift card that can’t possibly be used to buy beer?

The long and the short of it is that while I was free to express how distressed I was about his drinking problem, and while I was free to share the resources that I knew about, there was no way I could control another adult human being’s behavior.

There is a line between employment and private life. Employers can’t control how employees spend their money, try as they might to exert their moral influence.

Why should employers have a say in how their employees spend their health benefits?


Julie Delegal, a University of Florida alumna, is a contributor for Folio Weekly, Jacksonville’s alternative weekly, and writes for the family business, Delegal Law Offices. She lives in Jacksonville, Florida. Column courtesy of Context Florida.

Julie Delegal


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