Even before the U.S. Supreme Court overturned Roe v. Wade on June 24, Disney, Netflix and other companies were announcing plans to offer paid leave and travel expenses to employees who travel out-of-state to obtain abortions that have been banned in their states.
But offering abortion employment benefits carries legal risks for employers that go far beyond the usual threat of consumer boycotts of companies that take a position on a polarizing issue. Thirteen states have trigger laws criminalizing abortion immediately or within 30 days of Roe being struck down, and other states are expected to enact abortion bans soon.
That means companies that offer abortion-related benefits to employees in those states could be accused of aiding and abetting criminal activity. Robert Ellerbrock, a partner at FisherBroyles specializing in benefits law, notes that offering abortion-related benefits means “trying to figure out what’s safest for the employer while trying to help employees out.”
Determining whether an employer’s benefits violate laws in states banning abortion depends on how the benefit plans are structured and funded.
Under the Employee Retirement Income Security Act of 1974 (ERISA), fully insured group health plans, where an employer buys health insurance for its employees through a commercial insurer, are subject to state laws, Ellerbrock said.
But for self-insured ERISA health plans, where the employer covers the cost of providing health-care benefits to its employees directly, ERISA preempts state law, he said.
Ellerbrock and other legal experts anticipate much litigation over this and related employment issues in the months and years ahead.
Even in states where abortion is still legal, employees in antiabortion work environments may be afraid of being harassed or losing their jobs if they seek an abortion. But they do at least have some job protections under current law.
Let’s start with employees of companies that offer abortion-related benefits through self-insured ERISA health plans. Workers may have concerns about their privacy if they try to claim those benefits.
But according to Ellerbrock, most employers offering self-funded insurance plans hire an external administrator. Any claims data that the employer sees is scrubbed to show only how much is being spent and on what kinds of services, without identifying whom it’s being spent on.
Further, employers that administer their own plans in-house should have a HIPAA privacy officer who is required by law to keep individuals’ medical information private from the employer, Ellerbrock says. The bottom line: Employers cannot legally identify or share information about which employees are claiming which benefits based on information obtained from insurance claims.
Federal job protections
Employees who don’t have access to reproductive-health benefits through their jobs have to fund it themselves or seek assistance from abortion-funding networks. Employers are not required to carry health-care plans that cover any form of contraception. But federal law still provides general job protections for workers with eligible medical conditions — within limits.
- The Family and Medical Leave Act provides up to 12 weeks of job-protected leave for medical care — but only for eligible employees with qualifying conditions who have been with an FMLA-covered employer for at least a year. And, of course, the leave is unpaid.
- A pregnant employee may qualify for accommodations such as time off under the Americans With Disabilities Act, according to Tom Spiggle of Spiggle Law. But there’s no guarantee you’ll receive the accommodation, and your employer has the right to demand documentation from your doctor to justify your request. Your doctor may know how to word a letter that makes clear your medical need for accommodation without giving unnecessary detail.
- The Equal Employment Opportunity Commission has confirmed that Title VII of the Civil Rights Act, specifically the Pregnancy Discrimination Act, prohibits discrimination against anyone who considers or obtains an abortion. The law also prohibits discrimination against someone who is pregnant and chooses not to get an abortion. In other words, Title VII protects the employee’s right to choose what to do about their own condition — at least in an employment context.
Of course, all this abstract legal discourse is cold comfort to anyone facing the real risk of being punished and prosecuted outside the workplace. An employer that can’t fire you for having an abortion can certainly find another reason, especially if you’re arrested for it. If you struggle to afford travel and taking unpaid leave, hiring a lawyer for a prolonged legal battle is certainly out of reach.
And while employers stepping up to support abortion access for employees is welcome news to abortion rights advocates, it’s a tenuous and incomplete solution. But perhaps the engines of commerce can drive necessary change where political will has fallen short.