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 consider policy changes in response to this ruling, 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.
Employee Benefits Considerations
In the wake of the overturning of Roe v. Wade, many employers are exploring adjustments to their employer-sponsored group health plans and other benefits that would expand coverage to include travel-related expenses for employees seeking abortions and other medical care in states where coverage is not available.
Employers that 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 not considering expanding their current benefit plans may still want to commission a comprehensive evaluation of their existing 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-Roe Workplace.
Considerations Beyond Benefits
Although many employers have been initially focused on benefits considerations in the wake of Dobbs, the ruling also creates an array of novel employment issues unrelated to employer-sponsored benefit plans.
In the immediate term, some employers may feel pressure from their employees or other stakeholders to alter policies and/or take a public position with regard to the ruling. Meanwhile, employees may be voicing opinions in various contexts related to their personal political or religious views. This expression, along with an employee’s posting on social media, on their clothes, or in their email signature block, may implicate a variety of laws, ranging from the National Labor Relations Act to laws governing discrimination or off-duty conduct.
Reviewing policies related to employee conduct after Dobbs is especially prudent as workplace tensions can be exacerbated and new opportunities for discrimination claims may arise. The Dobbs decision is also likely to implicate other employment policies and issues, such as background checks, requests for leaves of absence or other accommodations, employee mobility/transfer issues, and employee privacy.
In a post-Roe workplace, supervisor training around these issues and a careful review of employment policies are key tools to help employers get 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-Roe Workplace.