Best Practices - Health Insurance Benefits


Title 29, Appendix to Section 1604 explains how mandates against pregnancy discrimination apply to the provision of health insurance for pregnant workers.  The basic principles of the PDA are that pregnant workers (or those who might become pregnant) must be treated the same as other employees in the same job classification who are similarly affected (e.g., experiencing a short-term medical disability).


Eligibility for health insurance benefits.   Maintain the same eligibility requirements under your group health insurance plan for pregnancy-related, short-term medical disabilities as for other types of short-term medical disabilities.  If your policy provides coverage to faculty for a wide variety of medical procedures (doctor’s visits, hospital stays, prescription medication, etc.) beginning on the first day of employment, then your policy must cover similar expenses (doctor’s visits, hospital stays, prescription medication, etc.) for pregnant faculty, beginning on the first day of employment.

Health Insurance Deductibles and Co-payments.  Maintain the same levels for deductibles and co-payments for doctor’s visits, hospital stays, prescription medications, etc. for all workers – regardless of whether their medical needs are pregnancy-related or not.  Group health insurance plans cannot require any additional deductible or co-payment for pregnancy-related medical expenses. 

Employee only Insurance and Family Insurance Plans.  Many institutions provide at least two health insurance plans, one that provides individual coverage for doctor’s visits, inpatient hospital procedures, laboratory tests, etc. for the employee only.  When an employer provides several different types of health insurance plans to its employees, each of the plans must include coverage for pregnancy-related conditions that is equal to the coverage provided for other medical conditions under the plan.  For example, an employee-only plan that pays 80% of the charges for inpatient hospital procedures must pay the same percentage of charges for a hospital delivery of  a baby (regardless of the employee’s marital status).  An individual plan that pays 100% of the cost of office visits to physicians must pay 100% of the costs of prenatal and postpartum doctor’s appointments.

Maternity-related Health Insurance for Employee Dependents.  In a family plan where a college or university provides coverage for the medical expenses  (e.g., doctor’s visits, hospital stays, lab tests, etc.) of the spouses of female faculty, then that health insurance plan must equally cover the medical expenses of the spouses of male faculty,   including those medical expenses related to pregnancy.


Pregnancy-Related Insurance Coverage for Dependent Children.  Employers are not required to cover the pregnancy-related expenses of dependent children.  But, any exclusions of coverage for dependent children must apply equally to male and female employees.  For example, if the pregnancies of daughters of male employees are covered, then the pregnancies of daughters of female employees must be covered.


Health Insurance Coverage for Infertility-Related Medical Expenses.  The law regarding health insurance coverage of infertility treatment is a complicated jumble of state insurance statutes, federal anti-discrimination laws and court decisions interpreting both. More than one dozen states mandates some coverage of infertility treatments. The more comprehensive laws require health insurance plans to cover the treatments. Other states only require that plans offer employers the option of purchasing infertility coverage as part of their insurance plans.  State laws do not affect employers who self-insure, because self-insured plans are governed by federal law under ERISA
     The U.S. Supreme Court has ruled that infertility is a disability for the purposes of the ADA[1] and that employers are thus required to make reasonable accommodations available to employees seeking infertility treatment (e.g., leave from work).  But  there has been no Supreme Court ruling that an employer’s group health insurance plan must cover infertility treatments. Some federal courts (e.g., the Seventh Circuit Court in Hall vs. Nalco, 2008)) have ruled that
s in vitro fertilization is gender-specific and a violation of the Pregnancy Discrimination Act because it is related to childbearing, which affects only women.  The Court held that “Employees terminated for taking time off to undergo IVF — just like those terminated for taking time off to give birth or receive other pregnancy-related care — will always be women”.
     As long as your employer’s insurance plan provides plan participants experiencing fertility problems the same amount of pregnancy- and fertility-related coverage  it provides to fertile plan participants, the plan does not discriminate on the basis of disability.  (EEOC v. Staten Island Savings Bank,
 207 F.3d 144, (2d Cir.,  2000)  


Covering Prescription Contraceptives.  Do cover the costs of prescription contraceptives under their group health insurance plan.  The direct and indirect costs of an unplanned pregnancy substantially exceed the costs of prescription contraceptives.  Moreover, the current legal landscape on this coverage is a jumbled patchwork, so from a risk management standpoint, it makes sense to provide this coverage.     The  EEOC’s “Decision on Coverage of Contraception"  and one federal court (Erickson v. Bartell, 141 F. Supp. 2d 1266, 2001) have ruled that under the Pregnancy Discrimination Act an employer’s group medical insurance plan must cover all federal government-approved prescription contraceptives[2] to the same extent that other prescription medications, devices, and  preventative services  are covered (e.g., vaccinations, blood pressure medications, oxygen tanks, preventative physical examinations, lab services, and so on).  Although in contrast, the Eight Circuit Court of Appeals ruled that employers are not required to cover prescription contraceptives under their group health insurance plans (Union Pacific Railroad Company v. Standridge and Phillips, 2007).  Over half of the states have also adopted legislation, insurance rules, or regulations that require employers providing group health insurance to cover prescription contraceptives on terms as favorable as those applied to other prescription medications or devices.  Under these state laws, the EEOC’s decision, or the district court’s ruling cited above, if an employer’s plan covers a month’s supply of a prescription medication with only a ten dollar co-payment required, then the monthly prescription contraceptive medication should also be covered with only a ten dollar co-payment required.   

[1]   In Bragdon v. Abbott (524 U.S. 624, 1998) the U.S. Supreme Court ruled that reproduction is a major life activity.  Subsequently, the Federal District Court for the S.D. of NY held that infertility is a physical impairment that interferes with a major life activity and thus, infertility is a disability covered by the Americans with Disabilities Act (Saks v. Franklin Covey  Co., 117 F. Supp. 2d 118, 2000)

[2]   The currently approved contraceptives are Norplant, IUD, diaphragm, Depo-Provera, and “the Pill”.