Impact on Employers
Examining Your Benefit Plans and Workplace Policies
The U.S. Supreme Court’s decision in Dobbs v. Jackson Women's Health Organization and the overturning of Roe v. Wade have reverted 50 years of abortion law precedent, causing a range of legal uncertainties—many with important effects throughout the workforce. As employers continue to consider policy changes in response to this ruling, as well as subsequent changes to law and enforcement mechanisms, it is important that they evaluate the entire landscape of legal issues in areas such as discrimination, health confidentiality, workplace conduct, employee benefits, and regulatory compliance.
Click here to download our checklist
Employee Benefits Considerations
In the wake of the overturning of Roe v. Wade, many employers explored (and may continue to explore) adjustments to their employer-sponsored group health plans and other benefits in order to expand coverage to include travel-related expenses for employees seeking abortions and other medical care in states where coverage is not available.
Employers that have added or choose to add such travel expenses for abortion services in states with abortion bans could assume risks that include liability for aiding and abetting violations of the abortion ban. State laws that relate to benefit plans may be preempted by the Employee Retirement Income Security Act of 1974 (ERISA), depending on whether the benefits are offered under a benefit plan covered by ERISA.
Even those that elected not to expand their benefit plans may still wish to commission a comprehensive evaluation of their plan structure to ensure that it falls in line with both state and federal regulations. Some important questions to consider include:
- Are any special health care and/or telehealth features applicable to your group health plan?
- Where are you offering benefits for medical care or travel expenses?
- What types of benefit plans are being used to provide travel benefits for medical care?
For a complete overview of benefits-related topics stakeholders should be considering following Dobbs, download our Employee Benefits Considerations for a Post-Dobbs Workplace.
Considerations Beyond Benefits
Although many employers were initially focused on benefits considerations after the Dobbs decision, the ruling has also created an array of novel employment issues unrelated to employer-sponsored benefit plans.
For example, some employers have felt pressure from their employees or other stakeholders to alter policies and/or take a public position with regard to the ruling, or reproductive rights generally. Employees who elect to voice opinions related to their personal political or religious views may be entitled to protections under various sources of law. Such expressions, along with an employee’s posting on social media, on their clothes, or in their email signature block, implicate a variety of laws, ranging from the National Labor Relations Act to laws governing discrimination or off-duty conduct.
As the fallout from the Dobbs decision keeps developing, employers should continue to review any policies related to employee conduct since workplace tensions can be exacerbated and have created new opportunities for discrimination claims. Employers may need to revise policies and procedures regarding leaves of absence related to reproductive health, employee mobility/transfer requests, employee privacy, and background checks for individuals with Dobbs-related criminal convictions.
In a post-Dobbs workplace, supervisor training around these issues and a careful review of employment policies are key tools to help employers get (and stay) out in front of these changes. For a complete overview of the non-benefits-related topics that stakeholders should consider in light of the Dobbs decision, download our Employers Checklist for a Post-Dobbs Workplace.
Click here to download our checklist
