Now That Roe Has Been Overturned, What Can Employers Do?

By: Katherine A. Grosh and Walker R. Lawrence

Unless you’ve been living under a rock, you know that in late June 2022, the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization held that there is no constitutional right to an abortion, overruling the 1973 landmark decision of Roe v. Wade. This decision isn’t just about abortion access– for decades to come, it has and will have a profound impact on women’s reproductive rights and access to health care generally, as well as other fundamental human liberties. Even before the Dobbs decision came down, several states had “trigger laws” banning abortion that were designed to go into effect immediately in the event Roe was overturned.

While the long-term impact of the Dobbs ruling on companies is uncertain, many employers are considering taking proactive actions now to support their employees in the wake of the Dobbs decision. As several large businesses have already announced, employers that have employees located in states that have enacted laws banning abortion, have implemented or are considering implementing a policy that provides travel and expense reimbursement to employees who need to travel out of state to receive abortion-related medical care. As businesses consider these policies, they are rightfully concerned about criminal and civil suit risks these new policies may create.

For example, some states have criminal or civil laws allowing for the prosecution of claims against individuals (and maybe businesses) that are aiding and abetting someone getting an abortion. At this juncture, there is a lot of uncertainty as to whether a company’s offer of insurance covering abortion or the company’s reimbursement of abortion-related travel expenses would qualify as such “aiding and abetting.” A company’s altruistic intentions then become the epitome of “no good deed goes unpunished.”

The legal issues implicated by offering these travel benefits to employees are varied and complex. However, it appears business can take steps to remain in compliance with state laws, under the current legal landscape, while also doing right by your employees. A few preliminary issues to consider:

  • A threshold issue is whether the employer should provide the travel benefits as part of its current health insurance coverage, or provide a travel benefit outside of its medical plan. There are pros and cons to both approaches.
  • While it is unclear whether reimbursement for travel expenses to receive abortion services would constitute a “group health plan,” subject to federal regulation, if the employer offers to pay abortion-related travel expenses, the employer could be creating a “group health plan” and unknowingly become a “group health provider.” Carefully structuring the benefit as an expense, rather than a medical cost, will mitigate this problem.
  • If a company does want to add travel benefits as part of a medical plan, they should work with their benefits provider to ensure it meets the various regulatory requirements.
  • In enacting the policy, the employer may assume the role as a “covered entity” under HIPPA, and therefore must take extra safeguards to protect any information regarding the need for the reimbursement (e.g., documentation substantiating the expense). This gives the employees confidentiality assurances as well.
  • An employer should consider whether the policy covers the entire workforce, or just those participants in the employer’s health plan or just those employees that reside in states with abortion bans.
  • Generally, ERISA preempts any state laws that “relate to” any ERISA plan. Thus, states that enact policies restricting any regulated insurance product from covering abortion-related services may be preempted by ERISA.
  • Developing a policy for employer-paid abortion travel may set a precedent that a company should pay other medically necessary travel expenses for other health conditions (e.g., travel to Mayo Clinic in Minnesota).
  • An employer cannot take an adverse action against an employee for getting an abortion even if it is illegal in their state because it would likely qualify as pregnancy discrimination under Title VII. The EEOC’s 2015 guidance on this issue is clear: “Title VII protects women from being fired for having an abortion or contemplating having an abortion.”
  • Additional considerations include whether qualifying expenses could be reimbursed under a Health Savings Account (HSA) or similar plan (and the corresponding implications to the satisfaction of an employee’s deductible), whether modifications of an existing health plan need approval from the state’s insurance department, and the tax considerations of including travel benefits as part of the employer’s health plan.

Should you require any guidance regarding the development or revision of your current employment-related policies, please contact Walker R. Lawrence at (312) 368-0100 or wlawrence@lgattorneys.com.

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