Roe v. Wade: Guidance for Employers

Since the U.S. Supreme Court decision to overturn Roe v. Wade on June 24, 2022, the media has had plenty to talk about. States have quickly worked to pass laws, and organizers have been busy with demonstrations. Let’s not forget all of the in-depth analysis of the decision’s impact on upcoming elections. And, as expected, companies are issuing statements about how they’ll support employees in light of this long-standing change for women’s reproductive rights.

As the nation processes the implications of the decision, there’s a lot for HR professionals to navigate. In the simplest terms, we’ll tell you this: it’s complicated. Thankfully, we had a helpful discussion with attorney Amanda Farahany, a Managing Partner at Barrett & Farahany, who provided insight on some key workplace issues to consider.

Travel benefits

Following the decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, many household brands have spoken out in disagreement. Companies have declared their pro-choice stance and committed to financially supporting employees who must travel for abortion access. Although the list is being updated regularly, some notable corporations that have issued statements include Amazon, Tesla, and Disney.

Since many corporations have employees spread throughout the U.S., this creates further complications for HR professionals working to implement policy changes resulting from the new case law. As states enact their own geography-specific legislation, companies are working to determine how best to support their employees.  

These inter-state issues create additional complexities that will be difficult for the government to enforce. Additional confusion is introduced when some counties within certain states have announced that they will not prosecute abortion-related crimes. 

The Bottom Line: As things currently stand, “I think that it’s safe for HR and for companies to support people and make those kind of travel arrangements or reimbursements,” said Farahany.

Privacy matters

As companies provide ways to support their employees in states without access to abortion, this raises another significant issue — the right to privacy. How can employees use this travel benefit without automatic violation of their right to privacy? One way to do this, Farahany said, is by creating a questionnaire that determines eligibility without violating privacy.

For example, requests for travel pay and/or reimbursement could be approached from a high level. When elaborating on this idea, Farahany proposed anonymizing information by asking, “Is this travel that is needed to cross state lines to get medical care that would not otherwise be available here?” 

This would protect employee privacy since the travel could be for non-abortion related medical services, such as specialist visits or experimental treatments offered only at designated locations.  

The Bottom Line: Though you may be eager to announce how you’ll support your employees, their right to privacy is just as important. Take the time to think through how your employees can access benefits while maintaining privacy.

What about medical insurance?

It’s too early to tell what the recent ruling will mean in terms of medical insurance coverage for abortion. However, it’s safe to say that there will be a ripple effect. Since the U.S. healthcare system is for-profit, we’re likely to see a sharp decline in the number of insurance companies that cover abortion.  

Many employers have employees in states where abortion is legal and others in states where it is now illegal. Employers offering travel benefits will have another big decision to make. If insurance companies do discontinue abortion coverage, what now? Farahany said it will be up to employers to determine whether they want to financially support the medical care that was previously allowed under their policy.

The bigger issue, however, is related to whether women and men are being treated equally. “It comes down to whether or not it’s discrimination,” Farahany raised. For example, if men have access to and coverage for certain reproductive drugs and procedures, women should have similar access and decision-making abilities in order to prevent discrimination.  

The Bottom Line: Contact your health insurance provider(s) to find out the latest on abortion coverage. If the coverage falls short, determine if your company will bridge the gap — keeping potential discrimination issues top of mind. 

Water cooler whispers

Employers need to keep in mind that employees will inevitably talk. “I think there’s going to be a lot of issues in the workplace around discourse,” said Farahany. Employers can expect an increase in workplace conversations regarding abortion generally, as well as the ruling’s political ramifications and religious issues. 

This dialogue can easily lead to increased harassment complaints as well as gender discrimination issues. In other words, this is just the beginning of the workplace implications.

Farahany added, “People feel a lot freer to speak their minds, and their minds often include discriminatory statements.”

The Bottom Line: It’s an opportune time to reiterate, strengthen, and/or emphasize the importance of your policy against harassment and discrimination. (And, while you’re at it, maybe it’s time to refresh your entire handbook and move it online.)

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Despite plenty of uncertainty, we can say this with certainty:
 

Things are in flux and will be for quite some time. 

Companies can’t provide employees with all the answers right now — nobody has them quite yet. However, you can still support your employees by creating a dialogue, highlighting mental health benefits, and providing helpful resources.

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Other advice

• FAQs on the Overturning of Roe v. Wade (SHRM)
• How companies offering to cover travel for out-of-state abortions might work (NPR)