Protests and demonstrations continue to divide our nation for several hot button topics, the latest being the SCOTUS overturn of Roe v Wade. While this strikes a passion for people on both sides of the aisle, how might this affect your workplace, regardless of your stance?
What is the “Overturn of Roe v Wade”?
On Friday, June 24, 2022, the Supreme Court of the United States (SCOTUS) reversed the 1973 Roe v. Wade ruling that declared abortion a constitutional right. This ruling now allows individual states to determine their own abortion rights and laws rather than having a federal law for all states.
How the Overturn of Roe v Wade Affects Health Insurance
For employers, perhaps the biggest unknown right now is how health insurance will respond to varying abortion laws by state. This will be complex as laws may vary based on where your company is located. The type of insurance your company provides will also determine whether you have flexibility in how to structure your health benefits.
Several questions that will need to be addressed include but are not limited to:
- Will companies and/or insurance plans be eligible to cover travel expenses for those that travel out of state for an abortion?
- If so, will that travel be limited to the closest location that legally allows abortions?
- Will this benefit be part of health insurance and/or an Employee Assistance Program, or will travel costs (transportation, lodging, meals) be reimbursed?
- What will the dollar limits be for travel costs if reimbursed?
- Will travel benefits be taxed?
- If state law prohibits anyone from traveling out of state to have an abortion, will insurance still be allowed to cover abortion costs?
- Will there be penalties for insurance plans that cover abortion costs in states that prohibit abortions?
- If states restrict companies, individuals, and/or insurance from helping someone travel out of state for an abortion, how will this be enforced?
- How will those states define “aiding someone” to have an abortion?
Understandably, state law makers have a bumpy road ahead as they define laws and regulations for those within their jurisdiction. And employers, particularly those that operate in multiple states, will have a complicated task of complying with various legal regulations that are sure to evolve over the next few months and years.
How the Overturn of Roe v Wade Affects Job-Protected Leave
In addition to the unknown world of insurance, employers in abortion-restricted states have asked how they should respond to employee requests for job-protected leave. Here is what federal laws say:
Pregnancy Discrimination Act (PDA, 15+ employees): A pregnant employee should be able to take leave “to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.”
Americans with Disabilities Act (ADA, 15+ employees): If pregnancy has severely limited a major life activity (walking, standing, lifting) or a major bodily function (neurological, musculoskeletal, reproductive functions), then someone seeking an abortion may qualify for ADA-protected leave. This assumes the employee on leave doesn’t create an undue hardship for the business.
Family Medical Leave Act (FMLA, 50+ employees): Eligible employees may take FMLA leave for their healthcare needs, assuming all guidelines and requirements are met.
For smaller companies with fewer than 15 employees, the EEOC has said that an employee is able to take pregnancy-related leave if their company provides similar leave for others with a temporary illness or family obligation.
However, as state laws evolve, you may want to consult legal counsel to learn more about how these federal laws interplay with states that prohibit abortions.
How the Overturn of Roe v Wade Affects Discussions at Work
It’s inevitable that employees may want to discuss the overturn of Roe v Wade at work. Some may say their ability to discuss this is protected by the First Amendment. However, First Amendment rights pertain to the government being unable to prohibit speech; they don't grant a free pass to talk about whatever you’d like, whenever you'd like without repercussion.
Employers can legally dissuade political topics from happening at work to protect others from harassment, discrimination, retaliation, or anything that could create a hostile work environment. Of course, not all topics can be silenced by employers, such as discussions about labor or work conditions (protected by the NLRA), but other discussions can be banned to prevent and maintain a positive work environment.
This is just the beginning of what’s ahead with different states’ complex compliance rules. If you are navigating federal and state employment laws on your own, it’s time to consider outsourcing to Stratus.hr. Our certified HR team will help keep you in compliance so you can focus on growing your business.
For more information, book a consultation and our team will contact you shortly.