Viagra: The Ups and Downs

On December 14, 2000, the Equal Employment Opportunity Commission ("EEOC") issued a decision that may change the types of prescription coverage offered by employers across America. The EEOC announced that it is unlawful for an employer group healthcare plan to exclude coverage for contraception, including birth control pills, diaphragms and other forms of prescriptive contraceptives for women. Employers with group healthcare plans which exclude coverage of contraceptives risk violating the Pregnancy Discrimination Act ("PDA") and Title VII.

The PDA requires equal treatment of women affected by pregnancy, childbirth or related medical conditions in all aspects of employment, including fringe benefits, and prohibits an employer from providing lower levels of coverage in their benefit plans for pregnancy or related medical conditions than it provides for other medical conditions. The EEOC explained the PDA's prohibition of discrimination in connection with a woman's ability to become pregnant necessarily includes the denial of benefits for contraception because contraception is a means to prevent, and to control the time of, the medical condition of pregnancy. Further, the EEOC stated that excluding contraceptives also amounted to sex discrimination because these prescriptions are available only to women. While this EEOC decision directly affects only the two women who complained to the commission, it has potential implications for employees everywhere whose employers exclude birth control pills and other forms of prescriptive contraceptives in their health insurance plans.

The two employers in this case argued that the exclusion of contraceptives was justified because their plans only covered treatment of medical conditions if there was something abnormal about the employee's mental or physical health. The EEOC, however, rejected this argument for several reasons. First, the employers covered contraception through surgical forms of sterilization – (i.e. vasectomies and tubal ligations) without requiring any showing of the reasons the individuals were undergoing the procedures. Second, the employers covered numerous treatments and services that were designed to maintain current health and prevent the occurrence of future medical conditions, whether or not there was something abnormal about the employee's current health status. Lastly, and probably most significant, the employers covered Viagra for male patients who complained about decreased sexual interest or energy regardless of whether the individual had been diagnosed as impotent. Consequently, the employers' assertion that their plans covered treatments only for abnormal medical conditions was not credible. Therefore, because the employers treated contraception differently from preventative treatments and services for other medical conditions, not to mention their coverage of Viagra, their failure to cover the cost for prescriptive contraceptive drugs and devices discriminated on the basis of pregnancy.

For an employer to avoid violating Title VII and the PDA, the EEOC listed several items which must be provided in a group healthcare plan. First, the plan must cover the expenses of prescription contraceptives to the same extent, and on the same terms, that it covers other types of drugs, devices and preventive care. Second, the plan must offer the same coverage for contraception-related outpatient services as are offered for other outpatient services. In other words, where a woman visits her doctor to obtain a prescription for contraceptives, she must be afforded the same coverage that would apply if she, or any other employee, had consulted a doctor for other preventative or health maintenance services. However, if a plan limits coverage of comparable drugs or services (e.g., by imposing maximum payable benefits), these limits may be applied to contraception and related care as well. Third, the plan’s coverage must extend to the full range of prescription contraceptive choices. Because the health needs of women may change, and because different women may need different prescription contraceptives at different times of their lives, the plan must cover each of the available options for prescription contraception. Finally, employers must include this coverage in each of the health plan choices that it offers to its employees.

Congress has considered legislation explicitly requiring health plans to cover contraceptives, but nothing has happened. Congress has, however, required that health plans for federal workers cover these prescriptions. Furthermore, this EEOC opinion is specific to the two cases presented and stops short of policy guidance that would apply to all employers.