End of Roe Raises Questions for Employers

Author: Emily Scace, Brightmine Legal Editor

June 27, 2022

In the wake of the Supreme Court's decision in Dobbs v. Jackson Women's Health Organization, which held that the Constitution does not protect a right to abortion, employers face challenges in areas ranging from benefit plans to social media to off-duty conduct policies and more.

Benefits and Leave

Generally, employers have broad discretion regarding whether to provide abortion-related care under their benefit offerings, though they are not required to do so in most states. However, questions may arise for employers that wish to provide abortion-related benefits for employees in states that restrict or ban abortion. Some state laws restricting abortion include provisions prohibiting a person from "aiding and abetting" an abortion, which may be interpreted to apply to employers that elect to provide leave or pay travel costs for employees who must journey to another state to obtain an abortion.

Longer-term, employees who are unable to obtain an abortion - or their partners - may be more likely to take leave and to need workplace flexibility or support for childcare-related issues. Some may exit the workforce altogether if they cannot access leave for these purposes or if childcare becomes prohibitively expensive.

In addition, it remains to be seen whether states will amend their insurance laws to either prohibit or require abortion coverage within employer-based health insurance plans. While there are many unknowns, employers should familiarize themselves with laws surrounding leave and benefits in any states where their employees are located.

Discrimination and Harassment

Although states now have virtually unfettered latitude to restrict or ban abortion, the Pregnancy Discrimination Act (PDA) of 1978 - an amendment to Title VII of the Civil Rights Act of 1964 - still prohibits employers with 15 or more employees from discriminating on the basis of pregnancy, childbirth or related medical conditions. Abortion falls within the scope of the PDA as a "related medical condition."

Accordingly, employers covered under Title VII may not discriminate against an employee for considering, seeking or obtaining an abortion - or choosing not to have an abortion - or treat employees with post-abortion medical complications differently from other employees with comparable medical issues. In addition, some states, including Delaware and Hawaii, have specific protections for reproductive health decisions under their antidiscrimination laws.

Because abortion is a highly charged issue that implicates many people's fundamental beliefs, including religious beliefs, employers must exercise care to prevent harassment of employees who fall on either side of the debate. Harassment of employees for an abortion-related position that implicates a sincerely held religious belief may violate Title VII if it is sufficiently severe or pervasive to create a hostile work environment. Similarly, harassment of an employee on the basis of abortion-related decisions may violate the PDA.

Conduct and Communications

Even if discussion of abortion in the workplace does not rise to the level of harassment, it is in an employer's best interest to proactively communicate with employees about the importance of civility and respect in the workplace. Although employers can generally require that employees limit communications to work-related matters when using company software or internal communications channels, some political discussions are protected by labor laws. The National Labor Relations Act (NLRA) requires employers to allow "protected concerted activity," which could include discussion of topics related to the "terms and conditions" of employment, such as group insurance coverage for abortion or related travel expenses.

Employers may also wish to review their policies regarding social media and off-duty conduct to ensure that employees are aware of any expectations about clarifying that their views are their own and do not necessarily represent the organization's position. State off-duty conduct laws and the NLRA might also protect employees engaged in the legal activity of posting comments related to reproductive rights on social media.

Privacy

Many issues are likely to emerge surrounding the implications for employee privacy. For example, it is unknown what information employees may be required to disclose, and to whom, in the event they wish to seek health coverage and related benefits for abortion. Medical information should always be kept confidential in accordance with applicable federal, state and local laws, and supervisors and managers must be instructed in how to handle any information they learn in the course of their duties.

Bottom Line

The implications of the Dobbs decision are sure to be felt for years to come, and the legal landscape is likely to evolve quickly. Employers should review their policies alongside applicable federal, state and local law and clearly communicate any changes to employees.