Wednesday, August 19, 2009
WIth respect to the question posed by our reader, I agree with Rob that the EEOC is unlikely to deem the coverage of NFP sufficient. It is the second of the reasons Rob mentioned that is key.
The claim here is not that an employer is obligated to provide some family planning coverage (such that NFP might be viewed to be sufficient), but that failing to cover prescription contraception is a form of sexual discrimination. Because prescription contraceptives are used exclusively by women, the exclusion of coverage is viewed as discrimination on the basis of sex (and/or pregnancy). It has also been argued that if a plan cover other prescription medication and not contraceptives, women bear a disproportionate share of out-of-pocket health care costs.
As an aside, the state laws that deal with this issue typically require that if a plan provides any prescription coverage, it has to provide coverage of all FDA-approved means of prescription contraception.
I don't think Rob's first argument would be persuasive in the absence of the second. Employers have tremendous freedom re what they cover under their health plsns. In the absence of a claim of sexal discrimination, it is irrelevant what other purpose contraception is used for.