Faith-Based Clauses In Employment Contracts
Faith-based clauses frequently appear in employment contracts for institutions with religious affiliations. What are these clauses, and how can they affect your care decisions?
When looking at an employment agreement, most healthcare professionals focus on compensation, work schedules, call obligations, and restrictive covenants such as the non-solicitation and non-competition clauses. Typically, contracts spell out these terms in great detail, and prospective employees scrutinize them closely.
But in their determination to negotiate these terms, many professionals give less attention to clauses that require employees to uphold specific religious or ethical standards. These faith-based employment clauses frequently appear in contracts for institutions affiliated with religious organizations. By definition, such clauses will play a role in a clinician’s care decisions.
How to Spot Faith-Based Employment Clauses
Generally, organizations include broad language in their faith-based clauses, often referencing another document. For example, a Catholic hospital’s physician employment contract may state that the physician agrees to “uphold religious values in their practice” or “abide by Catholic Hospital’s Code of Ethics” or “will abide fully with the Ethical and Religious Directives for Catholic Health Care Services.”
So what will you find in these referenced documents? Catholic healthcare providers — hospitals, clinics, managed care organizations, and other treatment centers — follow the Ethical and Religious Directives for Catholic Health Care Services (ERDs). Created by the US Conference of Catholic Bishops, ERDs adhere to the Church’s teachings and govern a clinician’s approach to reproductive and end-of-life issues.
For example, Directive 52 states:
Catholic health institutions may not promote or condone contraceptive practices but should provide, for married couples and the medical staff who counsel them, instruction both about the Church’s teaching on responsible parenthood and in methods of natural family planning.
Similarly, other religion-affiliated institutions may have contract language that states that the employee agrees to comply with all “medical bylaws” or “the hospital’s code of ethics.” Again, the restrictive language will reside in the referenced document.
Note that clauses that force a physician to provide particular services are generally not allowed. For example, most states have laws that prohibit lawsuits against healthcare providers who refuse to perform an abortion because of their religious or moral objections to the procedure.
Are Faith-Based Clauses Legal?
For the most part, these clauses are legal and enforceable. Legal protections indeed prohibit organizations from forcing employees to engage in a consciously-objected activity. At the same time, all private employers — not just religious institutions — have much leeway in deciding how they want their organizations to operate.
Religion does drive many discussions, however. For example, the Affordable Care Act (ACA) requires insurers and group health plans to cover contraception. US Department of Health and Human Services (HHS) excluded churches from this mandate in 2011. In 2013, HHS exempted other institutions that objected. In 2014, the Burwell v. Hobby Lobby case invoked the Religious Freedom Restoration Act. In that case, the Supreme Court held that under the ACA, non-public businesses are entitled to an accommodation if they don’t want to provide contraception for religious reasons. Later, a 2014 HHS rule expanded the “conscience protections” of private businesses.
Private and charitable organizations are not subject to the same constitutional requirements as public hospitals. So as long as they don’t violate anti-discrimination laws, they can decide who they will hire and under what circumstances.
Working Under a Faith-Based Employment Clause
Faith-based clauses often capture wide-ranging activities. Such activities may include posting on social media or practicing medicine in a way that contradicts the hospital’s values. Employees who violate these clauses are subject to termination. If an employee signs an at-will employment contract, the employee has very little redress. Even if employment is not at will, the organization can argue that the employee breached the contract, justifying the termination.
For example, Kimberly Remski, MD, sought employment at IHA, a large Michigan-based physician group. She was unaware that Trinity Health, a Catholic institution, owned IHA. She signed a contract stipulating that she could not perform abortions separately in her private life—even if unaffiliated with the hospital. As a result, Dr. Remski was forced to “amicably part ways” with the institution.
Do Clinicians Have Viable Workarounds?
Some healthcare professionals use workarounds to evade restrictions imposed by faith-based clauses. For example, a doctor who wants to prescribe contraception might purposely misdiagnose a patient. The doctor may perhaps even ask the patent leading questions designed to reach this misdiagnosis. The doctor would then use the misdiagnosis — a menstrual condition, for instance — as a pretext to prescribe medications that prevent pregnancy.
Of course, misdiagnoses can harm patients. It can confuse them and introduce false information into their medical records. In addition, a misdiagnosis carries ethical and legal risks and thus, creates new problems.
A provider can refer the patient to a secular institution for prohibited services in such cases. But unfortunately, the referral may cause inefficiencies and increased costs. For instance, the patient must schedule an appointment with another doctor and possibly pay more out of pocket due to duplicative admissions.
Reviewing Your Employment Contract for Faith-Based Restrictions
Private institutions have the law on their side; they can generally control who they hire and how their organizations operate. Meanwhile, faith-based clauses are typically vague and often escape a prospective employee’s notice. Thus, it’s crucial for providers to speak with a lawyer before signing an employment contract to avoid surprises.
The experienced healthcare attorneys at Jackson LLP want to help you ensure that you fully understand the terms of your contract. If you’re looking at an employer in any state where we have licensed attorneys, book a free consultation to see if we fit your needs.
This blog is made for educational purposes and is not intended to be specific legal advice to any particular person. It does not create an attorney-client relationship between our firm and the reader and should not be used as a substitute for competent legal advice from a licensed attorney in your jurisdiction.