Some Employee Chatter About Abortion Decision May Be Protected

Allen Smith, J.D. By Allen Smith, J.D. July 12, 2022
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​Employee reaction to the U.S. Supreme Court's recent decision on state abortion restrictions is sharply divided. Employers should keep in mind that some employee speech on the decision might be protected by the National Labor Relations Act (NLRA). This protected speech may be related to statements the employer has chosen to make regarding Dobbs or reproductive rights.

When the ruling was announced June 24, some employers chose "to determine whether to issue a statement in response to the Dobbs decision," said Jonathan Segal, an attorney with Duane Morris in Philadelphia.

In making this decision, employers needed "to consider the diversity of perspective on abortion not only among their employees but also among their customers, clients and business partners," he said. "Employers benefit from having individuals with diverse perspectives consider any draft response before going public with any statement."

Those diverse perspectives may lead to heated discussions in the workplace. Segal said it is neither desirable nor possible to stop all discussion about abortion at work, adding that NLRA rights may cover political speech when there is a potential nexus to workplace benefits.

'Tread Lightly'

"Employers should tread lightly because there are a number of complicated issues involved," said Emily Harbison, an attorney with Reed Smith in Houston.

For example, if employees are talking generally about the Supreme Court decision, that conversation is likely not protected concerted activity (PCA) under the NLRA, she said.

If employees are discussing the employer's response to the decision or the employer's public position—or lack of a response or position—they likely are engaging in PCA, Harbison said. Similarly, if employees are talking about the company's benefits or policies in light of the decision, or lack of benefits or policies, that too is likely PCA. The NLRA protects both unionized and nonunionized employees' rights to collectively discuss terms and conditions of employment at work, off-duty and on social media, law firm Reed Smith notes in a client update.

When thinking about whether to limit employee speech, employers should try to preserve their workplace culture, said Michael Elkins, an attorney with MLE Law in Fort Lauderdale, Fla. "Sometimes telling employees what they can't say can damage culture, or potentially cause a problem where one doesn't exist."

Segal noted that some employees are sharing their views about members of the Supreme Court on social media. "There is a big difference between sharing disagreement with the decision and attacking the faith or religion of the justices in the majority," he said. "If employers become aware of posts that contain religious hostility, employers need to respond in the same way as they would if there were other kinds of discriminatory hostility."

Support and Civility

"Many employees may also wish to engage with their employers or co-workers regarding the effects of this momentous decision," said Michael Arnold and Corbin Carter, attorneys with Mintz in New York City, in a joint e-mail. "These will not be easy communications."

Employers may wish to handle these sensitive discussions similarly to how many companies have handled social justice issues over the past few years, they noted: by encouraging civility and thoughtful discourse among employees and offering resources to employees who are struggling.

Although there may be NLRA protections for some speech about the decision and the issue is particularly sensitive, "employers may rely on their existing social media and related communications policies to set expectations for employees," they said.

Wide-Ranging Impact

The wide-ranging impact of the Supreme Court's decision on the workplace "cannot be overstated, and the landscape here is changing swiftly," Arnold and Carter added.

Employers must now deal with a multitude of state laws depending on the jurisdictions in which they operate that may alternately enshrine or criminalize employees' reproductive health decisions, they said.

The ruling will affect employee health care benefits and reimbursement policies, employee privacy, political expression in the workplace, the discrimination law landscape, and employer/employee relations, Arnold and Carter added. They asked, "Will employees be expected to share incredibly private information regarding their abortion-related decision-making with their employer" in order to access abortion-related travel benefits?

They also noted that "employees concerned about access to reproductive care may relocate to states with protections, forcing companies to examine talent retention and acquisition issues."

Employees, especially in states banning abortions, may be more hesitant to request leave under the Family and Medical Leave Act (FMLA) or leave as an accommodation under the Americans with Disabilities Act (ADA), Harbison said. When requesting FMLA and ADA leave for an abortion, employees "may have to provide more information to the employer than they feel comfortable providing to receive the time off," she said.

Segal noted, "It is not entirely clear whether time off to seek an abortion is covered by the FMLA." Nonetheless, the U.S. Department of Labor has issued statements strongly in support of women's reproductive rights. "Plus, there are cases that hold that a miscarriage may be a serious health condition. With this background, employers should err in favor of FMLA coverage," Segal said.

He added that even if an employer is not covered by the FMLA or an employee is not eligible for FMLA time off, the worker may be eligible for paid time off under the employer's policies. "Denying paid time off for an employee to seek an abortion where the employer ordinarily is permissive in granting coverage could give rise to a claim under the Pregnancy Discrimination Act," he cautioned. 

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