Post-Roe: What Employers Should Know About Employees, Medical Coverage, and Privacy

The U.S. Supreme Court’s leaked draft in Dobbs v. Jackson Women’s Health Organization now has become law with the Court’s recent issuance of its final opinion. A post-Roe America raises new and challenging issues for employers concerning employment law, medical plan coverage, and employee privacy. 

Issues Related to Employment Law

Allegations of Discrimination

The Dobbs decision will likely bring about a wide range of emotions from employees on both sides of this religious and politically charged issue. Employee discussions about the decision can easily escalate into an unwelcome debate that can cross the line into allegations of discrimination and a hostile work environment. Employers should be prepared to address employee concerns and handle complaints arising from these discussions. 

Paid Sick Leave to Obtain Abortions

Employers may also encounter unprecedented legal issues concerning their employees in states where abortions and related services are no longer legal. For example, an employee who wishes to consult a physician or have an abortion typically would take paid sick leave offered by the employer, or time available under state law, or the Family and Medical Leave Act (FMLA). If a state passes a law prohibiting abortion and related services, it may prohibit employees from using their sick time to obtain such services. Suppose the law makes aiding and abetting individuals in procuring such services illegal. In that case, the employer theoretically could face criminal charges for allowing an employee to use sick leave to travel out of state and have an abortion. Employers also need to consider whether and how to maintain confidential information about employees who disclose that they are using sick leave to obtain an abortion or related services. 

Solicitation Policies 

Many employers have anti-solicitation policies in their workplaces, often to prevent unionization efforts. In light of the Dobbs decision, employers could make an exception, allowing employees to attend rallies or protests. Exceptions to an anti-solicitation policy can lead to the employer having no choice but to allow other solicitations.

Medical Plan Coverage

ERISA Preemption

Employers must consider how ERISA preemption will affect medical insurance plan coverage for abortion and related services, which is currently far from clear. Some states are pondering legislation that would create a private right of action against individuals (and perhaps entities) who facilitate abortion services. How courts interpret ERISA preemption, concerning state laws limiting self-funded plans’ ability to fund abortions, is unknown. Due to the differences in state laws, employers likely will need to consider these issues on a state-by-state basis. 

Travel Costs as Medical Expenses

As employers grapple with how best to support their employees in jurisdictions that are likely to ban or limit abortion access, some employers have considered funding travel expenses to seek abortion services through their employer-sponsored health plans. If employers wish to offer this coverage outside their existing medical plans, those reimbursement plans would have to meet Affordable Care Act (ACA) requirements. It likely would be easier for employers to cover travel expenses under an existing group health plan or health savings account. Employers also must consider the tax implications for their employees of reimbursing travel and lodging expenses related to accessing abortion services. Finally, employers must weigh the potential risks of criminal liability associated with medical plan coverage for abortion-related travel expenses. 

Employee Privacy

Individual privacy rights are at the heart of the Dobbs decision, which could place employers in the undesirable position of feeling increased pressure to tighten security concerning employees’ confidential information. To the extent that employers collect any data that could show employees having accessed information about abortions, abortion facilities, or abortion-inducing drugs, employers should consider instituting stricter cybersecurity measures to protect employees’ identities. 

Employers should remember that the Health Insurance Portability and Accountability Act (HIPAA) prohibits them from using or disclosing employees’ protected health information (PHI) for any purposes not otherwise authorized. They also cannot utilize this information to inform employment decisions. 

HBL has experience in all areas of benefits and employment law, offering a comprehensive solution to all your business benefits and HR/employment needs. We help ensure you are in compliance with the complex requirements of ERISA and the IRS code, as well as those laws that impact you and your employees. Together, we reduce your exposure to potential legal or financial penalties. Learn more by calling 470-571-1007.

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Hall Benefits Law, LLC

HBL offers employers comprehensive legal guidance on benefits in mergers and acquisitions, Employee Stock Ownership Plans (ESOPs), executive compensation, health and welfare benefits, healthcare reform, and retirement plans. We counsel a wide spectrum of clients including small, mid-sized, and large companies, 401(k) investment advisors, health insurance brokers, accountants, attorneys, and HR consultants, just to name a few. HBL is passionate about advising clients, and we are dedicated to our mission: to provide comprehensive, personalized, and practical ERISA and benefits legal solutions that exceed client expectations.