The United States Supreme Court’s reversal of its prior decisions which had upheld certain constitutional rights to abortion and, as a result, leaving it up to state legislators to determine abortion rights, has left some employers questioning the impact of this decision on the workplace.
Some employers immediately responded. For example, Dick’s Sporting Goods announced, “if one of our teammates lives in a state that restricts access to abortion, DICK’S Sporting Goods will provide up to $4,000 in travel expense reimbursement to travel to the nearest location where that care is legally available. That benefit will be provided to any teammate, spouse or dependent enrolled in our medical plan, along with one support person.”
Goldman Sachs announced, “We have extended our healthcare travel reimbursement policies to include all medical procedures, treatments and evaluations, including abortion services and gender-affirming care where a provider is not available in proximity to where our people live.”
Many other employers made similar announcements.
These quick announcements demonstrate the unique circumstances for employers in balancing the needs of its employees without wading too far into a divisive topic that may distract from the needs of the business.
While women may not have a constitutional right to abortion, regardless of where they live, their right to non-discrimination remains.
The Pregnancy Discrimination Act, which amended Title VII of the Civil Rights Act, prohibits discrimination because of pregnancy, childbirth and related medical conditions. In its pregnancy discrimination enforcement guidance, the Equal Employment Opportunity Commission included “abortion” among the considerations for a “Medical Condition Related to Pregnancy or Childbirth.” The EEOC stated,
“Title VII protects women from being fired for having an abortion or contemplating having an abortion. However, Title VII makes clear that an employer that offers health insurance is not required to pay for coverage of abortion except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion. The statute also makes clear that, although not required to do so, an employer is permitted to provide health insurance coverage for abortion. Title VII would similarly prohibit adverse employment actions against an employee based on her decision not to have an abortion. For example, it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.”
In 2020, Virginia added provisions in the Virginia’s Human Rights Act requiring employers to provide reasonable accommodation for “known limitations related to pregnancy, childbirth, or related medical conditions.” Virginia employers with five or more employees must provide reasonable accommodation unless doing so poses an undue hardship.
Reasonable accommodation under the Virginia law includes, “leave to recover from childbirth.” Whether receiving an abortion is included within the law is unclear.
Virginia is not among the states with “trigger” laws. Under current Virginia law, abortion is legal in the first trimester of pregnancy. It is legal in the second trimester when performed in a hospital and physicians certify that continuation of pregnancy will result in death of the woman “or substantially and irremediably impair the mental or physical health of the woman,” among other provisions. Abortion is always legal in Virginia where necessary to save the life of a woman.
Thus, the Supreme Court’s opinion changes very little for Virginia employers.
For employers operating in multiple states, employers should respond to the Supreme Court’s decision, if at all, carefully and take confidentiality and consistency into consideration when making broad policy changes such as that announced by DICK’s Sporting Goods.
Employers should carefully determine whether paying for travel for certain medical procedures can be consistently applied for other procedures that might not be available in the locality where an employee lives.
For example, a Virginia man recently traveled to California for a back procedure performed by a surgeon who specializes in that procedure and which was not available from Virginia surgeons. Employers who change policy just for abortion may find themselves appearing to favor one medical procedure over another. This could be considered discrimination if, for example, a man claims that he will never be eligible for the abortion benefit, and therefore the policy in itself discriminates against men who may have the need for travel out of state for other medical procedures.
In addition, employers should also consider confidentiality, and documentation that will be necessary, for an abortion benefit, in addition to tax implications and amendments to defined benefits plans.