The highly anticipated Supreme Court decision in Dobbs v. Jackson Women’s Health Organization was issued on June 24, 2022. The majority decision held that the Constitution does not protect a right to abortion and returned decisions about access to abortion to the states. While the decision has resulted in many viewpoints from a personal perspective, there may be some implications for employers related to benefit plan offerings, off-duty conduct policies, workplace harassment and discrimination, and social media posts, amongst others.
Health Plan Benefits
Employers who currently cover or are planning to update their benefit plans to cover abortion-related services may need to consult with their employment counsel to ensure that the plan is not in conflict with any state restrictions or bans on abortion, specifically, because it is currently unclear whether some states will amend their insurance laws to either prohibit or require abortion coverage within employer-based health insurance plans.
Additionally, some states have established laws that include provisions prohibiting a person from “aiding and abetting” an abortion, which may be interpreted to apply to employers that elect to provide leave or pay travel costs for employees who travel to another state to obtain an abortion.
Potential Workplace Harassment and Discrimination
Because this is a highly charged issue that implicates individual fundamental beliefs, including religious beliefs, employers must take care to prevent harassment of or discrimination against employees who fall on either side of this issue. Harassing or discriminatory conduct based on an employee’s abortion-related position can implicate laws such as Title VII of the Civil Right Act, the Pregnancy Discrimination Act and state-specific human rights laws. Furthermore, some states, such as Delaware, Hawaii and New York have enacted reproductive health decision laws which provide additional protections to individuals based on their reproductive health choices and prohibit harassment, discrimination or retaliation based on these reproductive choices.
Due to the myriad of federal and state laws that could be implicated it is a best practice for employers to proactively communicate with employees about the importance of civility and respect in the workplace to prevent situations from rising to the level of harassment or discrimination.
Off-Duty Conducted/Protected Activity
Employers should also be mindful that because this issue has implications along political lines, some discussions, may be protected by state-specific off-duty conduct laws, in addition to federal labor laws, such as the National Labor Relations Act (NLRA) which requires employers to allow “protected concerted activity.” For example, discussion of topics related to the “terms and conditions” of employment, such as group insurance coverage for abortion or related travel expenses. Further, state off-duty conduct laws may also protect employees engaged in the legal activity of posting comments related to reproductive rights on social media.
Next Steps for Employers
Employers should familiarize themselves with laws surrounding health benefits in all states where their employees are located and review their policies in comparison to applicable federal, state and local law. Any changes in benefits should be clearly communicated to employees. It should be noted that plan changes may also trigger plan document updates and ERISA-related notification requirements.
It is also recommended that employers review certain policies such as social media to ensure that employees are aware of any expectations about clarifying that their views are their own and do not necessarily represent the employer’s position.
As a best practice, and where required by state law, employers should ensure that all individuals in their organization have been trained in harassment and discrimination. Consider whether examples of behaviors related to reproductive health decisions should be added to any training materials.
It is likely that there will be discussions about the decision among employees and some conversations can become controversial. Should this occur, according to SHRM, it is best for employers not to focus on shutting down the viewpoints on this issue, but to focus on the disruptions that are being created in the workplace.
Lastly, it is strongly recommended that employers consult with the legal counsel for additional guidance on addressing any workplace implications related to this decision.