Abortion is no longer a federal constitutional right. As a result of the United States Supreme Court decision in Dobbs v. Jackson Women’s Health, states may regulate abortion in a manner consistent with their own state constitutions and judicial precedent. The Dobbs decision overruled the Court’s own 1973 decision in Roe v. Wade, which had recognized the Fourteenth Amendment to the U.S. Constitution included a right to privacy and that the privacy right included a woman’s right to terminate her pregnancy up to the point of fetal viability. In the wake of the Dobbs decision, legal and practical questions will confront employers in ways that they may not have considered.
Communication Strategy
Among the issues employers already face is whether they must – or should – take and communicate a position on the Dobbs decision. The beliefs and values of an organization have come front and center in recent years over other issues, with some employers finding it beneficial (or even necessary) to speak out on topics like same-sex marriage, climate change and racial injustice. On the issue of abortion, inquiries and pressure to take a position may come from the media, patients and customers, community activists and employees themselves. Further, as discussed below, employers with health plans that cover abortion services will presumably have to take a position on whether to provide access to such services in states where abortion is or becomes unlawful.
Some employers may champion the decision while others may decry it publicly. Other employers may choose neutrality and silence. Other employers may embrace the diversity of opinion and choose not to express a “corporate view.”
Employers must carefully consider the approach most appropriate for them and then consider developing a communication strategy around the approach. Consideration will also need to be given to whether the employer moves forward with “one voice” and assigns a particular spokesperson or department to respond to inquiries about the organization’s position. Employers may also wish to provide their leaders with training and counsel on how to respond to concerns and questions raised by employees, including educating leaders on employee rights outlined below.
Workplace Discourse and Employee Protections
Individuals with opinions on both sides of the issue will express their views on this topic inside and outside of work, and emotions will be high. Employers will want to strive for civility in the workplace through such discourse to maintain a harmonious and respectful work environment and to minimize any undue disruption to operations. Managing this can present many legal challenges.
Among these challenges include employee speech protections. Many quickly think of the First Amendment to the U.S. Constitution, which protects freedom of speech. Importantly, the First Amendment itself does not afford protection to employees in wholly private workplaces. While most private employers will have considerable leeway in restricting communication, those restrictions may create problems with employee morale and/or public relations given the sensitivity of the topic. In addition, state laws may prevent employers from limiting speech even in the private sector. Connecticut has one such statutory protection.
Employees of governmental entities, like county or other public hospitals, enjoy First Amendment protections such that an employee speaking out about the Dobbs decision (in support of or against it) may be protected from retaliatory action by the employer. Therefore, before taking disciplinary or other action against an employee who expresses an opinion on the subject, a governmental employer should consult legal counsel to consider whether the employee’s speech is protected by the First Amendment (or other law) as a matter of public concern.
Most employers in the private sector are also covered by the National Labor Relations Act (“NLRA”), including employers without union-represented employees. The NLRA prohibits retaliation against an employee who engages in protected, concerted activity. For instance, employees who openly discuss their terms and conditions of employment, such as benefit offerings and whether the employer will cover expenses associated with an abortion, could be considered protected activity under the NLRA. Employees of governmental employers may be afforded similar protections under state law.
State and federal prohibitions against religious discrimination also may regulate what employers can do with respect to employees who are vocal about the Dobbs decision. An employee’s beliefs about abortion rights are often tied to a religious belief. As a result, employers should be mindful that any adverse employment action taken against an employee may run afoul of Title VII of the Civil Rights Act of 1964 or state antidiscrimination laws. For instance, an employer should consider whether disciplining an employee who championed the Dobbs decision in a lunchroom discussion about religion will subject it to a claim of religious discrimination.
An employer concerned that the Dobbs decision may provoke employee controversies should give their policies a careful review. They should prepare for anti-abortion and pro-choice commentary displayed on clothing, buttons and screen savers and for communications expressing one’s opinion to be sent by email or other messaging platforms. Clear, consistently enforced and lawful policies governing clothing, apparel, social media and network usage may prevent or at least reduce the likelihood of common conversations turning into cafeteria arguments. Those restrictions, of course, must be in harmony with the law.
Employee Benefits Considerations
The Dobbs decision also confronts employers with new employee benefits issues and dilemmas. An employer should first review its group health plan to determine what abortion provisions are currently contained in the plan.
Certain group health plans are covered by the Employee Retirement Income Security Act of 1974, as amended (“ERISA”). The application of ERISA is important because ERISA preempts many state and local laws dealing with employee benefit plans. One of the few types of laws that ERISA does not preempt is state insurance law. As a result, fully insured group health plans will need to satisfy state insurance laws, including state insurance laws addressing abortion.
Health plans that are self-funded through the employer’s assets or independent trusts escape state insurance law regulation. In general, self-funded plans tend to be plans maintained by large and medium-sized employers. Thus, many large and medium-sized employers may be able to design their plans to cover abortion services in states where abortions are legal.
ERISA preemption runs only to ERISA civil liability, however. ERISA does not preempt criminal laws of general application. Some states have passed laws that criminalize abortion service providers’ conduct in providing abortion services. The providers impacted include not only physicians and physician extenders but also could impact pharmacy benefit managers, telehealth providers and others.
In light of the Dobbs decision, some employers with workers in states with abortion restrictions have already announced that they will provide coverage for abortion services as well as travel expenses for travel to other states with less restrictive laws. For self-funded health plans, such travel expenses could likely be provided as a nontaxable benefit along with other benefits of ERISA coverage. In contrast, it is unlikely that fully insured plans licensed in states that restrict abortion services will be able to provide travel expenses. State departments of insurance control insured benefits provided in such states and will presumably work to restrict both abortion and travel expense coverage. We also note that certain states are beginning to take a stand toward criminal liability for helping individuals to obtain an abortion. This, too, should be considered in covering abortion-related travel expenses and/or abortion services themselves.
There are also plan design hurdles for those who wish to provide these travel benefits under their health plans. For example, under the Mental Health Parity and Addiction Equity Act (“MHPAEA”), changing a health plan to cover abortion-related travel expenses may require the plan to be amended to provide travel expense reimbursement for mental health services and addiction benefits to avoid violating MHPAEA. This concern is heightened by the increased, robust compliance initiatives of the Department of Labor.
For those employers who wish to provide assistance with travel expenses, but cannot provide them under their group health plan, there may be other options for covering travel expenses such as employee assistance plans or employee financial hardship programs. The taxation of such benefits may not be as favorable as those provided under a group health plan, however. Finally, a free-standing taxable travel expense reimbursement plan might also be considered by employers, but careful consideration of the interaction with various state and federal laws will be necessary.
Monitoring State Laws and Future Changes
In addition to the considerations above, employers need to consider the many nuances associated with state regulations on abortion itself and the changes (or new laws) likely to be passed. Hall Render will be on the lookout for legal developments regulating what employers can and cannot do.
In the weeks and months ahead, employers will want to consider these legal and practical questions and consequences of the Dobbs decision and confer with legal counsel as necessary.
If you have any questions, please contact:
- Jon Rabin at (247) 457-7835 or jrabin@wp.hallrender.com;
- Kevin Stella at (317) 977-1426 or kstella@wp.hallrender.com;
- Bill Roberts at (502) 568-9364 or ebplans@wp.hallrender.com;
- Fred Bachmann at (317) 977-1408 or fbachmann@wp.hallrender.com;
- Calvin Chambers at (317) 977-1459 cchambers@wp.hallrender.com; or
- Your primary Hall Render contact.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
