Supreme Court Puts Abortion in the Employment Spotlight
June 24, 2022
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In Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court relegated abortion to the control of individual states. As a result, states vary widely on whether or not abortion is legal and to what extent. Employers and employees are now asking how this ruling impacts them and whether they need to do anything about it. Like the issue itself, the implications are complex.
The Equal Employment Opportunity Commission (EEOC) acknowledges that Title VII of the Civil Rights Act of 1964 protects women from being fired for having an abortion or contemplating having an abortion. Title VII similarly prohibits adverse employment actions against an employee based on her decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement. State anti-discrimination laws may similarly protect individuals in the employment context. Keep in mind that some jurisdictions, like California and the District of Columbia, prohibit discrimination based on political affiliation.
Leaves of Absence
Qualifying employees may take a protected leave of absence for issues related to pregnancy under the Family Medical Leave Act, Americans with Disabilities Act, Pregnancy Disability Act, or any number of state leave laws. Leave for abortion-related care may be protected, including having an abortion or recovering from having had an abortion, depending on the circumstances as certified by a healthcare professional. Employees may also use accrued, unused employer-provided paid sick leave or paid time off according to employer policy. Employers must take care to observe rules protecting employees’ privacy, such as not requesting a medical diagnosis and keeping medical and other personnel information confidential.
Employer-Sponsored Health Plans
At the federal level, Title VII makes clear that an employer that offers health insurance is not required to pay for abortion coverage except where the life of the mother would be endangered if the pregnancy were carried to term or medical complications have arisen from an abortion. Although not required, an employer is permitted to provide health insurance coverage for abortion. If an employer decides to cover the costs of abortion, it must be covered in the same manner and degree as any other medical condition covered under the health plan.
Private insurance coverage of abortion is also regulated at the state level. Some states prohibit or restrict
abortion coverage in state-regulated insurance plans, while other states require abortion coverage. Employers must review the laws of the states in which their employees reside and work to ensure proper coverage. Additionally, self-funded plans are regulated by ERISA, which may see challenges to the application of federal versus state law. Employers should work with their benefits consultants and health plan providers to evaluate any changes to their plans.
Several large corporations have announced travel benefits for employees to obtain reproductive health care out-of-state. Generally, tax-free travel benefits for medical care may be provided through group health plans, subject to limitation. However, there are Affordable Care Act, ERISA, and other tax compliance issues if providing travel benefits outside of the group health plan context. If looking to offer travel benefits, employers should review their options with benefits counsel for compliance.
Aside from general compliance concerns, there may be additional considerations related to employment for which employers should ensure consistency among all employees. For example, employers should consider how to address requests for paid or unpaid leave to attend demonstrations and marches, time off to volunteer, leave pooling to support co-workers in need of reproductive health care and/or following the birth of a child, matching employee donations to organizations on either side of the issue, and addressing other components of employer health programs or DE&I programs where the issue may come up.
Additionally, employers may receive inquiries from employees about the security of their health and employment data and the type of data that is tracked about them (e.g., in a health and wellness program). Employers should review their own data policies and practices for possible changes and to address employee concerns.
Because of the changing complexity of state laws, employers should review their response and policy changes with legal counsel.
- Review health plans with your benefits consultant and health plan providers for possible changes.
- Have appropriate personnel trained on anti-discrimination and leave protections affiliated with reproductive health care.
- Review employer-specific programs for any potential impacts.
- Review data security and privacy practices.
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Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser. © 2022 ManagEase