The U.S. Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization on June 24, 2022, overturning Roe v. Wade and Planned Parenthood v. Casey and holding that there is no right to abortion in the U.S. Constitution. In doing so, the court returned the authority to regulate abortion to the individual states. The Dobbs decision poses a unique set of challenges for employers, as state regulations on abortion will vary greatly from state to state.
Key Considerations for Employers
Employer-sponsored benefit plans are generally preempted by the Employee Retirement Income Security Act of 1974 (ERISA), but there are preemption exceptions included for state laws governing insurance coverage. Employers who purchase employee insurance coverage, as opposed to employers that self-fund employee insurance coverage, may see changes to reproductive healthcare coverage. It is likely that state-licensed insurance companies operating in states that prohibit or significantly restrict abortions will now limit or completely exclude employer coverage for abortion-related and other reproductive healthcare services. Other insurance companies may limit coverage for abortion-related services for employees in states that prohibit abortions, even if the employee is willing to travel to a different state where such services are permitted. Employers should review their healthcare plans with internal decision-makers and human resources professionals, educate them about the types of coverage offered to employees, and provide guidance about responding to employee inquiries about coverage changes. Employers also may wish to consult with their insurance brokers to confirm whether their insurance plans may be modified in the future to exclude or limit abortion-related services for all or a select group of employees.
In the wake of the Dobbs opinion, some states have already imposed "trigger laws" imposing restrictions or outright bans on abortion. Others, such as Texas and Oklahoma, have additionally enacted laws criminalizing abortion. Importantly, some of these laws explicitly state that providing coverage or reimbursement of abortion expenses is considered aiding and abetting abortion. Employers considering increasing contributions for employee health savings accounts (HSAs), implementing health plan amendments or expanding plans that would cover travel and lodging expenses for employees who may choose to seek out-of-state reproductive and abortion-related services should consider whether doing so may expose the employer to civil or criminal liability.
In the days ahead, there will undoubtedly be a wide array of emotional responses to the Dobbs decision. Employers should be mindful about how employees may react, the impact of differing viewpoints on employee morale and productivity, the possibility of an increase in requests for leave and potential employee resignations. Reviewing handbooks, policies and procedures as well as retraining managers and employees on company policies governing codes of conduct and anti-discrimination, harassment and retaliation will remind employees of appropriate conduct in the workplace. Human resources professionals and supervisors should re-familiarize themselves with practices governing maintenance of confidential health information and the policies governing dress code and social media conduct. How will the company respond to an employee who comes to work with an anti-abortion message on his or her shirt? What about an employee who tweets out an offer to drive co-workers to get an abortion from a state that has criminalized such actions? Importantly, employers must ensure that policies and procedures are applied uniformly and that decision-makers know how to respond to these potential situations to mitigate potential liability and claims of discrimination.
Employers should also be mindful that certain speech in the workplace may be protected, including speech about abortion. While the right to free speech under the First Amendment does not extend to private workplaces, other laws protect specific types of expression in the workplace such as the National Labor Relations Act (NLRA) and Title VII of the Civil Rights Act. The NLRA allows employees to seek better working conditions by discussing the terms and conditions of their employment without fear of retaliation. Traditionally, the NLRA's protections are limited to employees engaging in protected concerted activity. Under the Biden Administration, however, the National Labor Relations Board (NLRB) has taken a decidedly pro-union view of what constitutes protected concerted activity. Accordingly, it is possible that employee discussions regarding topics – such as an employer's policy providing fringe benefits to women seeking reproductive and abortion-related healthcare services – may fall under the rubric of concerted protected activity.
Title VII serves to, among other things, protect employees from religious discrimination and requires employers make reasonable accommodations when necessary. Because the issue of abortion is closely intertwined with religious beliefs and practices, employers should take special care to ensure that no actions are taken against employees based on their religious beliefs for or against abortion and that all policies and procedures are applied equally irrespective of viewpoint.
Employment issues and laws will continue to evolve in the aftermath of the Dobbs decision. Employers should consult with legal counsel to stay abreast of changes to the legal landscape and for guidance in making informed decisions and creating clear and consistent messaging to employees and the public.