FAQs on the Overturning of Roe v. Wade

June 24, 2022
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The Supreme Court decision overturning Roe v. Wade may bring about several compliance-based questions for the workplace. Employers should understand the issues that may present themselves and what legal developments should be monitored.

Can employers discriminate against employees who get an abortion?

No. Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978 (PDA), protects women against discrimination and harassment in employment based on pregnancy, childbirth or related medical conditions, which would include abortion. Per the Equal Employment Opportunity Commission, an employee having an abortion, not having an abortion or contemplating having an abortion would be protected under the statute. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain a job, get better assignments or stay on a path for advancement.

Can an employer's group health insurance plan exclude coverage for abortions?

Title VII does not require employers that offer health insurance to pay for coverage of abortions except where the life of the mother would be endangered if the fetus were carried to term, or where medical complications have arisen from an abortion. The statute also makes clear that, although not required to do so, an employer is permitted to provide health insurance coverage for abortion.

The Affordable Care Act does not require coverage for abortions as an essential health benefit.

State insurance laws will vary on what coverage may be offered or restricted in fully insured group plans and public employer plans issued in that state. A state law could prohibit these plans from covering certain abortions.

Self-insured plans are governed mainly under the Employee Retirement Income Security Act, not state regulations, so coverage is generally not limited by state law. Certain abortions might not be available within a particular state, but a self-insured plan could cover them where available in other states.

Must employers keep information regarding an employee's abortion private?

Yes. Even when not technically required by law, employers should keep this information confidential. Sharing this information, at a minimum, could expose an employer to a discrimination or harassment claim under Title VII or state discrimination laws if used against an employee. It could also violate state privacy laws.

Americans with Disabilities Act (ADA)

In terms of medical records, the ADA requires employers to treat any medical information obtained from a medical inquiry or examination (including medical information from voluntary health or wellness programs) as a confidential medical record. While unusual, should an employer obtain information on an employee's abortion through such an inquiry, it would be considered a confidential record under the ADA.

Health Insurance Portability and Accountability Act (HIPAA)

The HIPAA privacy rule requires employers to maintain the confidentiality of employee medical information that was derived directly from the group health plan. This information is commonly obtained through summary claims reports from the insurance carrier or plan administrator. As these reports do not generally identify individuals with claims activity, it would be a rare occurrence—with the exception of a self-administered, self-insured plan—for an employer to discover an employee had an abortion directly from a group health insurance plan. If it did, then that information would be protected under HIPAA.

When an employee simply tells an employer about a health issue they have or a treatment they have received, that information is not protected under HIPAA.

Can employers legally pay for an employee to travel to another state to have an abortion?

In most cases, there will be some vehicle an employer may use to do this, but there is much to consider in terms of how this benefit will be offered. Whether it's through a group health plan, a flexible medical plan or something outside of a health-related benefit, compliance and/or taxation issues will need to be considered.

Attorneys at Seyfarth have written a comprehensive article on plan design options and risks. All employers should consult with their own attorney before implementing such a benefit to ensure compliance and keep abreast of any new legal developments that would impact such a policy.

Do employees have the right to discuss reproductive rights in the workplace?

Generally, no, but in some very limited circumstances, they might.

Many employees believe they have a right to free speech in the workplace, but that simply isn't true. The First Amendment rights to free speech pertain to the government being unable to prohibit speech, not private employers. Even public employers are able to discipline employees' speech to ensure the efficient operation of their offices. See First Amendment Protects Against Viewpoint Discrimination.

But employers cannot limit all employee speech. The National Labor Relations Act (NLRA) requires both union and nonunion employers to allow "protected concerted activity," which could include employees discussing topics related to the "terms and conditions" of employment, such as group insurance coverage for abortions, or related travel expenses. 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 that might incite employee discussions. Employers should always check with their attorney before taking a negative employment action against an employee based on employees expressing their views. See What Employee Speech Is Protected in the Workplace?

Even prohibiting unprotected speech related to reproductive rights, however, is not likely to stop these conversations and is generally not advised. That being the case, many employers will choose to remind employees of policies in place requiring respectful interactions with each other, and some may choose to address the issue more directly.

Where managers are equipped with the skills to facilitate "productive conflict", greater workplace inclusion can actually be achieved. See Talking Taboo: Making the Most of Polarizing Discussions at Work (SHRM, 2022) for information on handling polarizing discussions in the workplace.

Must employees be allowed to display posters or wear pins or shirts depicting views related to reproductive rights in the workplace?

Generally, no, but a clear policy indicating what decorations and clothing are allowable, and consistent enforcement of it are needed. If, for example, an employee is allowed to wear a button promoting LGBTQ rights, but not reproductive rights, that could be discriminatory. See How HR Should Respond to Social and Political Expression at Work


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