On Friday, June 24, in Dobbs v. Jackson Women’s Health Organization, the United States Supreme Court overruled Roe v. Wade and held that the United States Constitution does not protect a woman’s right to terminate her pregnancy.
After Dobbs, some employers are considering adding or altering abortion-related benefits provided under their employer-sponsored group health plans, including coverage for travel related-expenses. Although it is currently unclear whether and to what extent employers may offer those benefits without potentially violating applicable state law, below are some immediate action items and considerations for employers:
- Review the Group Health Plan: One immediate action step is to review the group health plan (including pharmacy benefit provisions) and to consult with the plan’s third party administrator to determine what the plan covers and to ask whether any changes are necessary or desired. Many group health plans already impose limits on abortion-related coverage. For example, a group health plan may be drafted to limit coverage to those situations where the pregnancy was the result of a criminal act, or the woman’s life is at risk. Thus, in some case, the plan may already align with many (not all) state law exceptions.
Self-insured clients that wish to restrict abortion-related benefits may be able to do so, but employers must continue to be mindful of other applicable laws, including Title VII of the Civil Rights Act, and the Pregnancy Discrimination Act. Title VII prohibits discrimination on the basis of sex (which might be implicated by a restrictions on reproductive healthcare), and the Pregnancy Discrimination Act forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. In addition, the FMLA provides unpaid job-protected leave to eligible employees for serious health conditions that may include pregnancy and pregnancy-related health conditions.
- Job protected leave related to abortion: With respect to abortion-related medical issues, an employee may be entitled to leave under federal law.
The Pregnancy Discrimination Act (PDA) requires an employer that allows temporarily disabled employees to take disability leave or leave without pay, to extend the same leave benefits to an employee who is temporarily disabled due to pregnancy-related conditions, including conditions related to an abortion. The PDA applies to employers with 15 or more employees.
Under the Federal Family and Medical Leave Act, (FMLA), an employee may be eligible to take unpaid, job-protected leave due to an inability to work related to an abortion if the employee’s healthcare provider determines that they have a qualifying serious health condition. The FMLA requires employers to maintain the confidentiality of all medical information, and applies to employers with 50 or more employees.
Under the Americans with Disabilities Act (ADA), while pregnancy is not considered a disability, complications arising from a pregnancy may be. An employer may not discriminate against an individual whose pregnancy-related impairment is deemed to be a disability under the ADA, and must provide an individual with a reasonable accommodation, unless such accommodation would result in an undue hardship. Where a pregnancy is terminated due to a disability, the employee must be provide a reasonable accommodation (which may include job protected leave) unless it would result in significant difficulty or expense to the employer. The ADA applies to employers with 15 or more employees.
- ERISA Preemption: With respect to self-insured health plans subject to the Employee Retirement Income Security Act (ERISA), ERISA preempts any state laws which “relate to” the health plan. However, it is not clear that ERISA preemption will save all abortion-related benefits. For example, a court could find that a blanket prohibition on paying for abortion-related benefits does not sufficiently “relate to” a group health plan to trigger ERISA preemption, but instead is a law of general applicability. Also, to the extent a state law criminalizes abortion-related benefits, ERISA preemption generally does not apply to criminal laws.
With respect to fully insured plans, ERISA does not preempt state insurance laws. Therefore, a state’s insurance laws could prohibit an insurance policy from paying for abortion-related benefits in that particular state. It is less clear whether a state could prohibit (or require) a group health insurance policy paying benefits for abortion-related benefits received by its residents who travel to another state.
- Travel- Related Benefits: If travel-related benefits are paid through a group health plan, the benefits may need to be structured to comply with the Affordable Care Act, HIPAA and the Mental Health Parity Act. If travel-related benefits are paid outside a group health plan, the benefits would be taxable to the employee. Notably, if a state statute criminalizes “aiding and abetting” abortion, travel-related benefits could be considered to be aiding and abetting, and could subject the employer, group health plan, TPA and certain employees to legal action, including criminal action. It is uncertain whether a state could (or would attempt to) prosecute an out-of-state person for conduct and payment occurring outside the state. Additional analysis from Husch Blackwell on this topic is forthcoming.
- Union Employees: For employees subject to collective bargaining agreements, employers should consider their obligations under the agreement because any changes to the coverage, including the addition of travel-related benefits, may be subject to negotiation.
These comments are not the definitive word, and it is likely that many of these issues will play out in years of litigation.