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Supreme Court expands religious exemption from Obamacare contraceptive requirements to private employers

When passed, so-called “Obamacare” contained exemptions from its contraceptive-coverage requirements for religious organizations and other non-profits that hold sincerely held religious objections. Following a series of regulatory developments and judicial decisions, eventually, by 2018, the Trump Administration expanded the exemptions to include private employers, including even publicly traded companies, and secular universities, even with regard to their student health care coverage.

In a fractured decision, the Supreme Court upheld the Trump Administration’s 2018 rule, at least for now. It is not clear from their fractured opinions whether the opinion resulted in a flat-out win or simply a remand. At least 2 of the Justices (Breyer and Kagan) whose votes are included in the 7-vote majority, wrote a concurrence outlining why they believe the Trump Administration may ultimately lose the case on remand. Commentators have already begun noting their belief that the case will not be successful on remand and is likely to return on appeal to the Supreme Court.

Source: Little Sisters of the Poor v. Penn., case no. 19-431 (7/8/2020).

DC Circuit affirms NLRB’s ruling that off-duty employees have protected right to picket near hospital entrance

Historically labor practitioners (and the NLRB and the courts) have analyzed picketing versus handbilling differently. As a general rule, handbilling (i.e., the distribution of literature) has been allowed in many circumstances where picketing (the holding of a picket sign) is not. For example, in hospitals, since the Board’s 1945 Republic Aviation decision, handbilling, like solicitation (verbal requests for support) has been presumptively permitted “outside of immediate patient-care areas, such as in hospital lounges and cafeterias … unless the hospital can demonstrate the need for the restriction ‘to avoid disruption of health-care operations or disturbance of patients.’” 

In this case, the NLRB extended that approach to picketing, and the D.C. Circuit has affirmed its approach. The DC Circuit cautioned that the employer might have been able to block the picketing if it could prove that the “likelihood” that the otherwise protected activities would disturb patients or disrupt patient care. 

It is likely that future courts (and the Board) will limit this ruling to its facts where:

  • Off-duty employees
  • Of a hospital
  • Wish to picket by merely “holding … picket signs—without any chanting, marching, or obstructing of passage”
  • In a manner where they stand “stationary” and do not patrol
  • In a location, which even if near the hospital entrance, does not impede pedestrians, traffic or other operations
  • And do so without the likelihood of disturbing patients or disrupting patient care.

Source: Capital Medical Center v. NLRB, (D.C. 8/10/18).