How Businesses, Policies, and Employees Could Be Impacted by the Overturning of Roe v. Wade

The U.S. Supreme Court decision on June 24, 2022, in Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, as well as precedent from Planned Parenthood Pennsylvania v. Casey. The Court held that the Constitution does not guarantee the right to an abortion and left the states to decide how to legislate access to abortion-related medical services. This decision has created many questions from employers and HR managers about the impact on workplace policies, operations, and employees.

This article includes information available at the time of publication and is meant to offer businesses several points they might consider as they plan any potential changes. Laws will vary from state to state, and the U.S. Supreme Court’s decision brings into play “trigger laws” that various states have passed. These laws were put in place specifically if Roe and Casey were eventually overturned, but unenforceable while the federal protections provided by those laws were in place. With federal restrictions lifted, these state laws could take effect.

The information below is not legal advice. Paychex encourages employers to speak with their own counsel and insurance carrier to fully understand what their federal and state obligations are before making any decisions for your business.

How Could Health Insurance Coverage Be Affected?

A business can have a fully insured plan, a self-insured plan, or a level-funded plan, with each regulated differently. In a fully insured plan, the employer buys insurance from an insurance carrier and the plan is subject to state insurance laws. These laws affect whether a fully insured plan can provide coverage for abortion-related medical services and, in states that prohibit abortion services, can act to prohibit a fully insured plan from providing such coverage.

A self-insured healthcare plan, in which health benefits for employees are provided directly from the employer, is subject to the Employee Retirement Income Security Act (ERISA). This federal law generally preempts state law regulating benefit plans. However, states retain the right to regulate insurance, and there are exceptions to ERISA preemption that might be impacted by abortion laws within a given state as well as potential court challenges to the ERISA preemption that result from this ruling.

A level-funded plan is a hybrid of these two plans. It is self-funded and regulated like a self-insured plan, but it works similar to a fully insured plan because the employer buys insurance from the carrier — and state insurance laws regulate the insurance carrier.

Each state has the right to regulate the insurance industry in its state, so multi-state businesses should be aware of any differences that might exist from state to state.

Can Travel Benefits Be Provided to Access Abortion-Related Medical Services?

Many group health plans already have provisions that provide travel benefits for medical care. Following the Dobbs decision, some employers in states where abortion and abortion access are illegal or limited by law began communicating to employees that they would help cover travel benefits for those who had to seek out-of-state medical attention.

Employers are encouraged to seek legal counsel before modifying their policies, group health plans, or benefits packages to offer travel benefits or reimbursements.

Can Employees Use Leave Time to Seek Abortion-Related Access?

Although an employee may qualify for leave for abortion-related health care under various federal and/or state laws, assessment of eligibility should be considered under the same framework as other medical conditions. Employers may wish to consult with legal counsel when looking to comply with existing statutes and/or expand employee leave options.

Employer coverage under federal and state leave laws may be impacted by employer size. For example the federal Family and Medical Leave Act (FMLA) applies to private employers with 50 or more employees in each of 20 or more workweeks in the current or preceding calendar year, all public agencies and public and private elementary and secondary schools.

Regarding access to or recovery from abortion-related medical services, an employer could require certification from an eligible employee for leave taken under the FMLA, which means a determination is made by a healthcare provider that a qualifying serious health condition exists. Employers must follow guidelines on getting healthcare provider certification while maintaining an employee’s privacy by securing medical information confidentiality.

Likewise, an employee with a qualifying disability related to a pregnancy might qualify for job protected leave under the Americans with Disabilities Act (ADA) for abortion-related services unless the leave would constitute an undue burden for the employer.

Employers requiring documentation related to medically related leaves of absence must follow guidelines on getting such documentation while maintaining an employee’s privacy by securing medical information confidentiality.

Your state also might have leave laws that cover smaller businesses and include additional obligations for employers and additional rights for employees.

How Do Federal Discrimination Laws Impact Abortion-Related Policies?

Title VII of the Civil Rights Act of 1964 comes into play, particularly the Pregnancy Discrimination Act (1978) that amended Title IV to make discrimination in employment based on pregnancy, childbirth, or related medical conditions unlawful. The U.S. Equal Employment Opportunity Commission (EEOC) takes the position that these laws prohibit adverse employment actions against employees who have, or refuse to have, an abortion or related medical care.

An employer must also take into account other existing federal laws that ban discrimination, but businesses should consult with legal counsel about how these laws might impact them in regard to this issue.

What’s Next?

Paychex will continue gathering information that can help employers understand more fully the impact of the Dobbs decision on their operations, compliance obligations, and employees. Our HR Services provides a dedicated HR professional who can work with your business to customize an action plan and help with implementation.