While the impact of the Dobbs decision continues to evolve, there are important areas that may affect your business, such as health insurance plans, employee benefits, and workplace policies. Here’s what employers need to know.
On July 24, 2022, the U.S. Supreme Court issued its final decision in Dobbs v. Jackson Women’s Health Organization which overturned Roe v. Wade. The final ruling in this landmark case brings an end to the protection of abortion rights under federal law. However, it doesn't make having an abortion illegal. The decision shifts the power to individual states to develop, regulate and enforce abortion laws.
How the Dobbs Decision Impacts Employers
Health Insurance Coverage. Under Title VII of the Civil Rights Act of 1964, employers that offer health insurance are not required to pay for coverage of abortions with the exceptions associated with endangering the mother’s life or medical complications.
Travel Benefits and Covered Expenses. According to a recent Society of Human Resource Management (SHRM) Research Institute survey, some companies are considering adding coverage of travel expenses to obtain medical procedures—including abortions.
In general, travel benefits for medical care are typically included in group health plans and can be provided tax-free up to certain limitations. Employers who want to integrate the travel benefit within their current group health plan or offer it outside of their plan should be aware of potential compliance requirements related to the Affordable Care Act (ACA) and ERISA, as well as legal and privacy issues.
Additional Benefit Plans. In states where abortion services are banned or limited, employers should consider how employees, and their covered dependents, may use other benefits programs or may need different types of benefits long-term, such as child-care support and adoption counseling.
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Job-Protected Leave. Although Title VII and the Pregnancy Discrimination Act (ADA) protect workers from employment discrimination based on their decision to have or not to have an abortion, there may be additional issues associated with taking time off to travel to another state for abortion-related care.
Under Title VII, employers are not required to provide pregnancy-related leave unless it also provides leave for other temporary illnesses or family obligations. However, in certain circumstances, workers are allowed to take job-protected leave as a reasonable accommodation under federal law, and in some states, additional protection may also be available.
Under the ADA, employers are required to maintain all employee medical information, including abortion-related information, as confidential medical records. In addition, HIPPA requires employers to protect the confidentiality of medical information provided by a group health plan.
Digital Surveillance. Employers should also prepare for a potential increase in digital surveillance, from law enforcement and advertisers, for example. Also, note that data privacy laws, including data retention policies, can vary from state to state.
Regardless of your benefit decisions, be proactive in communicating to your employees. Make sure your employees understand how to access and use the benefits provided in your Employee Assistance Program (EAP) as well as other resources available for support and confidential counseling.
Stay Up to Date
Your HR teams are likely to face a number of challenges in the days ahead. As of July 1, 2022, abortion is legal in 27 states and Washington, D.C. Stay current with any changes in abortion-related health coverage relative to the applicable laws in your state and in the states where your employees are working. Before making any adjustments to your health insurance plan, employee benefits, and other workplace policies, it’s important to seek guidance from your legal counsel and benefits advisor to determine how applicable federal and state laws may affect your business.
PLEASE NOTE: This information is for general reference purposes only. Please check with the appropriate organizations or government agencies for the latest information and consult your employment attorney and/or benefits advisor regarding your responsibilities. In addition, your company may be exempt from certain requirements and/or be subject to different requirements under the laws of your state. (Updated July 14, 2022)