What Employers Need To Know in a Post-Roe World | Burr & Forman

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On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, the 1973 ruling that protected a woman’s right to have an abortion. In Dobbs, the Supreme Court upheld a Mississippi statute that banned abortion after 15 weeks of pregnancy and further held the Constitution does not confer a right to abortion, returning the authority to regulate abortion to state lawmakers. Although continuing legal challenges are a certainty, immediately following Dobbs seven states have already banned abortion, five additional states have bans that will go into effect within the next 30 days, and an additional 14 states are likely to impose bans in the coming months.

As Justice Alito’s majority opinion states, “Abortion presents a profound moral issue on which Americans hold sharply conflicting views.” Accordingly, employers should take caution when navigating the complex and, in many ways, novel questions of law involving federal-state preemption, health insurance coverage, discrimination, and privacy. New and soon-to-be enacted laws restricting abortions likely implicate employer-sponsored health insurance plans, employee leave requirements under the Family Medical Leave Act and other statutes, federal discrimination statutes including the Americans with Disabilities Act, Title VII, and the Pregnancy Discrimination Act, criminal background checks, employee confidentiality, data and privacy laws, and employee free speech concerns.

  1. What are an employer’s obligations with respect to abortion under federal employment laws?

Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act (PDA)  broadly prohibit  discrimination and harassment based on sex, pregnancy, childbirth or related medical conditions. The Equal Employment Opportunity Commission (EEOC) had advised that an employee having an abortion, not having an abortion, or contemplating having an abortion is protected under the statute. The EEOC has also noted that employers are prohibited from firing an employee for having or considering having an abortion and employees are similarly protected from adverse employment actions based on their decision not to have an abortion.

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The Pregnancy Discrimination Act further requires that employers treat women affected by pregnancy, childbirth, or related medical conditions in the same manner as other employees who are similar in their ability or inability to work. Employers must provide the same benefits for pregnancy-related medical conditions as they provide for other medical conditions, and pregnant employees are entitled to the same amount and type of leave that is provided to employees with other types of short-term disabilities. Thus, if an employer permits non-pregnant employees to take leave in order to travel for medical procedures the employee cannot access in the state where the employee lives, the employer should be wary of potential discrimination claims if the employer were to deny leave to a pregnant woman seeking leave to travel across state lines to access an abortion.

In addition, although pregnancy itself is not considered a disability under the Americans with Disabilities Act, some pregnant employees may have pregnancy-related impairments that substantially limit a major life activity (i.e. preeclampsia, gestational diabetes, etc.) that are covered under the Act. Accordingly, an employee who is seeking an abortion due to a covered disability may be entitled to ADA-protected leave as a reasonable accommodation unless providing the leave creates an undue hardship for the employer. Pregnant employees who are eligible for leave under the Family Medical Leave Act may also be entitled to leave if they have a qualifying serious health condition.

Like all medical information, employers should treat information about an employee’s abortion confidential in order to comply with privacy requirements under the ADA and HIPAA if the information is obtained directly from the employer’s group health plan. Certain states may have additional laws related to the privacy of employee medical information that employers must also navigate.

  1. Can abortion-related services be covered under employer group health plans?

Under Title VII, an employer who offers health insurance is not required to pay for coverage of abortion except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion. Employers may choose to provide health insurance coverage for abortion-related services; however, if an employer decides to cover the costs of abortion, it must do so in the same manner and to the same degree as it covers other medical conditions.

Following the Dobbs decision and the enactment of several state laws banning abortion, many companies have announced they will provide health insurance benefits to cover travel costs for employees who must travel to another state to receive an abortion. State lawmakers in Texas have already threatened lawsuits and further legislative action to bar such provisions.

The effect of state laws on abortion-related coverage and benefits under an employer’s group health insurance plan largely depends on the type of plan the employer offers. For employers with self-funded insurance plans, the Employee Retirement Income Security Act (ERISA) prohibits states from adopting requirements that “relate to” employer-sponsored health plans and likely preempts state laws that seek to limit insurance coverage for abortion-related travel and services. Employers with fully-insured health plans are governed by state insurance laws, including state laws that may dictate whether policies may cover out-of-state travel to obtain an abortion.

  1. Can employers prohibit employees from discussing abortion in the workplace?

The First Amendment applies to prohibit restraint of speech by the government, not private employers. So although employees generally do not have the right to discuss abortion or related topics in the workplace, employers should remember that the National Labor Relations Act protects employees who engage in protected concerted activity related to the terms and conditions of their employment.  Thus, the NLRA could offer protection for conversations among employees about certain abortion-related topics such as whether the employer’s health plan will cover abortion or travel expenses to obtain an abortion in another state.

Employers can address legitimate concerns about how employees express their opinions on social and political issues through neutral workplace conduct and dress code rules. Employers should ensure consistent application of any such policies to avoid giving the appearance of favoritism toward certain viewpoints and potential discrimination claims.

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