Impact of the Dobbs Decision on Employers

On June 24, 2022, the Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and Planned Parenthood v. Casey by holding that the U.S. Constitution does not include a federally-protected right to obtain an abortion and that the question of whether to allow, prohibit, or limit abortion is for the states to determine through each of their political and legislative processes.

In surveying the landscape post-Dobbs, abortion seems likely to remain legal in 28 states where it is already protected by state law; and in 16 states, abortion is either prohibited, limited or headed in that direction. The remaining 6 states permit abortion for now, but have cases pending in their courts. Additionally, some states’ laws purport to ban travel to other states for the purpose of procuring an abortion, or include prohibitions on “aiding and abetting” abortions. Since restrictions such as these implicate other constitutionally-protected rights, potential civil liability, and potential criminal penalties, they will inevitably lead to further political debate and litigation in the coming years.

Impact of Dobbs on the Workplace
The Dobbs decision will undoubtedly impact the workplace in countless ways and challenge employers as they grapple with a patchwork of state abortion laws and their impact. Employers should closely monitor changes in applicable state laws, particularly with respect to so-called “travel bans” which seek to impose liability on third parties who assist individuals in obtaining an abortion. Corporate leaders should also be prepared to manage reactions to the Dobbs decision, including possible employee demonstrations and social media posts.

Among the myriad issues likely to arise in the wake of Dobbs, employers should be mindful of the following:

• Official communications – Any official statement about Dobbs by an employer may have unintended consequences, including possible harm to the organization’s brand, disruption of the workplace, or potential backlash by employees who claim such comments create a hostile working environment or discriminate on the basis of a protected class (gender, religion).
• Off-Work Activities – Employers generally may not restrict off-work activities which are legal under state law, even if the employer does not support those activities.
• Anti-Bullying – Remind employees about the importance of respect and professionalism, even when they don’t agree with one another.
• Anti-harassment/discrimination –Ensure such policies are up to date at the federal, state and local levels and offer examples of how harassment can manifest in the workplace (e.g., jokes, texts, social media). Prepare managers to respond appropriately to possible discriminatory remarks made by employees.
• Dress Code – Provide clear guidelines on the workplace dress code, particularly as it relates to items of clothing featuring political messages. Keep in mind National Labor Relations Board (NLRB) and Title VII protections that may impact dress code issues.
• Accommodations and Leaves of Absence – Ensure the company has clear guidelines on when employees may take a leave of absence or request accommodations for certain disabilities, pregnancy or pregnancy-related issues, including specific steps on how to make such a request.
• Relocation – Review your relocation policy and update as needed to ensure it is clear and able to be applied uniformly, without the need to for case-by-case exceptions (which could result in discrimination claims).
• Social Media – Review social media policies to clarify that employee opinions shared on social media are not being made on behalf of the company, and specifically prohibit employees from doing so.

Legal Implications of Dobbs
Employers are encouraged to review workplace policies and benefit offerings to ensure compliance with all applicable laws, keeping in mind that any changes may trigger reactions by the public and employees (for and against), and, more importantly, may result in potential legal implications for the company.

For example, employers that are considering adopting (or expanding) travel policies and benefit plans to cover employees’ out-of-state travel for medical reasons must be mindful of certain legal implications, which may include the following:

1. ERISA/health plan coverage issues – Self-insured group health plans may continue to provide coverage for abortion-related expenses; however, fully-insured plans may face issues since they are regulated by state insurance laws, which are not preempted by ERISA. It is likely that states banning abortion will seek to prohibit abortion coverage, even if the procedure occurs in a state where abortion is legal. Likewise, some states may enact statutes that would impose civil or criminal liability on anyone who “aids or abets” or “assists” a resident of that state with obtaining an abortion. Although the legality of these laws may be challenged, it is difficult to predict the outcome; therefore, employers and plan sponsors should be mindful of the risks associated with covering abortion-related care.
   
   
2. Tax law/travel benefits to access care – Generally, group health plans may cover travel expense (such as transportation and lodging) related to accessing medical care, including reproductive health. However, the same concerns noted above apply in here. Likewise, it is important to note that the IRS does impose limits on the amount of travel expenses that a group health plan may reimburse as a tax-free benefit.
   
   
3. Privacy issues/benefits outside health plans – In light of the above issues, employers exploring the possibility of offering travel benefits outside their health plan should be mindful of the privacy concerns triggered by such an approach. Both HIPAA and state privacy laws restrict employers from holding information about employee reproductive care decisions; likewise, claims under Title VII could be made if adverse action is taken against an employee following such care. Other options for covering travel expense outside the group health plan may include the creation of a separate health reimbursement arrangement (HRA) or an employee assistance plan (EAP). However, HRAs and EAPs are subject to specific regulations and must be structured with care.

The Dobbs decision has quite literally capsized the legal landscape for employers and health plans. We will continue to monitor changes in state law, as well as federal agency regulations, which may impact how employers respond to post-Dobbs changes in their policies and benefit plans. If you have questions about the Dobbs decisions and its impact on your organization, please contact Trish Lantzy at [email protected] or 804-683-1737.

A member of our Washington D.C.-based team, Patricia Lantzy is a highly skilled labor and employment attorney with almost 30 years of experience. Trish works with a wide range of clients, from individual executives and small businesses to the Fortune 500, on employment-related issues across the employee lifecycle, including recruiting, hiring, workplace harmony and leave issues, performance and discipline/discharge, corporate reorganizations and reductions in force.