Employment implications arising from Dobbs v. Jackson Women’s Health Organization | Holland & Knight LLP

The United States Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization on June 24, 2022, heartbreaking Roe vs. Wade and Family planning c. Casey and arguing that there is no right to abortion in the US Constitution. In doing so, the court returned the power to regulate abortion to individual states. The Dobbs This decision poses a unique set of challenges for employers, as national abortion regulations vary widely from state to state.

Key considerations for employers

Employer-sponsored benefit plans are generally preempted by the Employees Retirement Income Security Act of 1974 (ERISA), but there are preemption exceptions included for state laws governing employee coverage. insurance. Employers who purchase employee insurance coverage, as opposed to employers who fund employee insurance coverage themselves, may see changes in reproductive health care coverage. It is likely that state-licensed insurance companies operating in states that ban or severely restrict abortions will now limit or completely exclude employers’ coverage for abortion-related and other reproductive health services. Other insurance companies may limit coverage for abortion-related services for employees in states that prohibit abortions, even if the employee is willing to travel to another state where such services are permitted. Employers should review their health care plans with internal decision makers and human resource professionals, educate them about the types of coverage available to employees, and provide guidance on how to respond to employee requests for coverage changes. Employers may also wish to consult with their insurance brokers to confirm whether their insurance plans may be modified in the future to exclude or limit abortion-related services for all or a select group of employees.

In the wake of the Dobbs In the view, some states have already imposed “trigger laws” imposing outright restrictions or bans on abortion. Others, such as Texas and Oklahoma, have additionally enacted laws criminalizing abortion. It is important to note that some of these laws explicitly state that the coverage or reimbursement of abortion costs is considered aiding and abetting abortion. Employers considering increasing contributions for employee health savings accounts (HSAs), implementing health plan changes, or expanding plans that would cover employee travel and accommodation costs who might choose to seek out-of-state reproductive and abortion services should consider doing so. may expose the employer to civil or criminal liability.

In the days to come, there will undoubtedly be a wide range of emotional reactions to the Dobbs decision. Employers should be alert to employee backlash, the impact of differing viewpoints on employee morale and productivity, the possibility of increased leave requests, and potential employee resignations. Reviewing manuals, policies and procedures as well as retraining managers and employees on company policies governing codes of conduct and anti-discrimination, harassment and retaliation will remind employees of proper conduct At work. Human resources professionals and supervisors should reacquaint themselves with practices governing the retention of confidential health information and policies governing dress code and social media conduct. How will the company respond to an employee who comes to work with an anti-abortion message on their shirt? What about an employee who tweets an offer to entice co-workers to have abortions by a state that has criminalized such actions? Above all, employers must ensure that policies and procedures are applied consistently and that decision-makers know how to respond to these potential situations to mitigate potential liability and allegations of discrimination.

Employers should also bear in mind that certain speech in the workplace may be protected, including speech about abortion. Although the right to free speech under the First Amendment does not extend to private workplaces, other laws protect specific types of workplace expression, such as the National Labor Relations (NLRA) and Title VII of the Civil Rights Act. The NLRA allows employees to seek better working conditions by discussing the terms and conditions of their employment without fear of reprisal. Traditionally, NLRA protections have been limited to employees engaged in protected concerted activity. Under the Biden administration, however, the National Labor Relations Board (NLRB) has taken a decidedly pro-union view of what constitutes protected concerted activity. As a result, employee discussions of topics — such as an employer’s policy offering benefits to women seeking reproductive health care and abortion-related services — may fall under the rubric of concerted protected activities.

Title VII serves, among other things, to protect employees from religious discrimination and requires employers to make reasonable accommodations when necessary. Since the issue of abortion is closely linked to religious beliefs and practices, employers must take particular care to ensure that no action is taken against employees because of their religious beliefs for or against abortion and to that all policies and procedures are applied in the same way, regardless of their point of view.

Next steps

Employment issues and laws will continue to evolve as a result of the Dobbs decision. Employers should consult legal counsel to stay abreast of changes in the legal landscape and for guidance in making informed decisions and creating clear and consistent messaging for employees and the public.

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