Religious Liberty Advocates Welcome Federal Regulation Changes

Advocates of the Orthodox community as well as of other faith groups welcomed two regulatory changes recently made by the Trump administration that they feel will alleviate practical impasses to religious observers in the workplace.

In one widely covered move, the federal Department of Health and Human Services (HHS) rolled out new regulations to protect doctors, nurses, and others in the healthcare field from being forced to perform services that conflict with their religious beliefs.

The other makes it significantly easier for federal employees to shift work hours to take off time for religious observance. The move, a longtime advocacy project of the Agudath Israel of America, is a boon for Orthodox workers who find themselves faced with challenges in taking days for Yamim Tovim or leaving work early on short winter Fridays for Shabbos.

Though touching on different issues, both moves represent an attempt on the administration’s part to follow through on a pledge to prioritize policies that promote fair treatment for people of faith in the public square.

Rabbi Abba Cohen, Agudah’s Vice President for Government Affairs who delivered the closing invocation at the White House’s National Day of Prayer event, where the polices were unveiled, said that the policy changes send an encouraging message to faith groups and their members.

“These are both very positive steps that show the administration is moving government toward stronger protections for religious liberties as well as for religious accommodation,” he told Hamodia.

The changes for health care professionals were instituted by HHS and its Office for Civil Rights (OCR) spelled out in over 400 pages that aim to strengthen the department’s “conscience rule,” which exempts health care workers on all levels as well as entities such as clinics and hospitals from discrimination over refusal to participate in procedures or services that conflict with their religious beliefs. The regulations address a swath of medical issues that have long come in conflict with traditional religious values as well as some that have become increasingly in the spotlight with the advance of “progressive policies.” The rules apply to any entity that receives federal funding.

“Finally, laws prohibiting government funded discrimination against conscience and religious freedom will be enforced like every other civil rights law.” said OCR Director Roger Severino. “This rule ensures that healthcare entities and professionals won’t be bullied out of the health care field because they decline to participate in actions that violate their conscience, including the taking of human life. Protecting conscience and religious freedom not only fosters greater diversity in healthcare, it’s the law.”

In January 2018, HHS founded a new Conscience and Religious Freedom Division and announced that it would be working to revise a 2011 conscience rule that administration officials said was insufficient in enforcing the 25 Congressional provisions aimed at protecting medical professionals from reprisals for actions taken as a result of their religious beliefs. The move came months after President Trump signed an executive order directing federal agencies to review and adjust polices to robustly protect religious liberty.

Mr. Severino said that changing circumstances facing the health care profession had necessitated more detailed rules, noting that while OCR averaged only one conscience complaint per year for decades, it had dealt with 343 in the past fiscal year alone.

Alliance Defending Freedom (ADF), a law firm that has argued several high-profile cases on behalf of religious medical providers, was one of many groups to welcome the change.

“Unfortunately, ADF clients and other nurses, doctors, and health care providers have faced discrimination and even have lost their jobs because of their commitment to saving life,” said ADF Legal Counsel Kellie Fiedorek. “We commend the Trump administration and HHS for this commonsense rule that simply ensures longstanding federal conscience laws are enforced so no American is forced to choose between violating their beliefs and serving those most in need.”

The rules were not universally cheered as many progressive voices, including the American Civil Liberties Union, said that they “grant health care providers unprecedented license to refuse to provide information and health care to patients and puts faith before patients’ health.” Their protest was one in a chorus of critics who claimed that the rules would allow doctors, hospitals and others to discriminate against individual patients.

Rabbi Cohen emphasized that HHS’ move was not new policy but merely an attempt to strengthen enforcement for many laws pre-existing state and federal laws and that while it protects the individual’s right to object to participating in a procedure, that there is no option to categorically refuse treatment to any patient.

“I don’t think these concerns [of discrimination] will bear out,” he said. “Firstly, this is not person focused, but treatment focused and even when these issues do come up, if you or your organization don’t want to be a party, they refer the patient to another doctor or center. If it creates issues over time, they’ll have to be addressed, but that’s not a reason not to protect religious doctors and nurses.”

Rabbi Cohen said that of particular importance to the Orthodox community are the protections against forced participation in doctor assisted suicide. The practice, recently legalized in New Jersey, has the support of New York Governor Cuomo, and is law in a growing number of other states.

“Not only with assisted suicide, but with burgeoning technology and a changing attitude in many circles to end of life issues, these rules could be very important to Orthodox doctors,” said Rabbi Cohen.

While the other item announced in conjunction with the Day of Prayer was far less politically charged, changes in how federal employees can accrue and apply “compensatory time” is the result of a 15-year effort mostly led by Agudah.

A law that designed many years ago, chiefly by attorney Nathan Lewin, allows federal employees to build up time earned in “overtime” hours to offset time taken off for religious observance. Yet, Rabbi Cohen said that the level to which workers were accommodated differed from agency to agency, often at the whims of supervisors.

“The law itself has been helpful to thousands of frum federal employees, but over the years problems have arisen and our office has gotten more and more complaints from workers,” he said.

Two key elements of the new regulations announced by Margret Weichert, acting director of the federal government’s Office of Professional Management (OPM), are that employees have 26 weeks to accrue or make up for time taken off and that what constitutes a religious observance is up to the employee, not the agency they work for. Additionally, if a request is denied the supervisor must submit a written explanation for his decision.

Attorney General William Barr voiced strong support for the change.

“American history has shown time and again that religious faith can promote good citizenship and the qualities that make for good government service,” he said. “By offering more flexibility in employees’ work schedules, today’s new rule treats Americans of faith with respect and recognizes that government can make legitimate accommodations while still serving the public.”

In 2006 and again in 2013, OPM proposed regulation aimed at addressing concerns, but Rabbi Cohen said that both fell short of the solutions he felt were necessary to support Orthodox federal employees.

“One proposal only gave six weeks to make up the time and it seemed to indicate that it was at the discretion of the supervisor to determine the legitimacy of the request,” he said. “For 15 years we tried to finalize these rules, but got nowhere.”

When the Trump administration took office, Rabbi Cohen put forth a new proposal that won the support of 20 religious and civil rights organizations from across the political spectrum. “We told the administration that this was a win-win, it was good for federal employees and for religious freedom,” he said. “We pushed and pushed and, lo and behold, we were finally successful.”