In its June 24, 2022 opinion in Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court held that the Constitution does not confer a right to an abortion. Although the Dobbs holding—and the state-level abortion prohibitions that followed—did not specifically review or overrule any employment laws, the decision creates significant questions for employers nationally.
When an employee is pregnant, the employee may be eligible for certain benefits provided by the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and workers’ compensation coverage. However, following the Dobbs decision, a number of states now significantly restrict or prohibit the provision of abortion services, which could previously be accessed, at least indirectly, via employee benefits conferred by certain statutes and insurance coverage. The intersection of these benefits with state laws that prohibit abortion and traveling to access abortion services has created confusion for employers attempting to comply with the law. Below are just a handful of previously clear obligations that are now creating compliance questions for employers nationally.
Compliance with the ADA
The Americans with Disabilities Act prohibits covered employers from discriminating against qualified individuals because of a disability. A covered “employer” is one that has 15 or more employees for more than 50% of the preceding calendar year. A “disability” is a condition that substantially limits a major life activity. Notably, pregnancy itself is not a “disability” under the ADA, but pregnancy often causes impairments that are treated as a disability under the ADA. Common pregnancy-related “disabilities” include high blood pressure, severe morning sickness, or limited mobility, but this list is hardly exhaustive.
Covered employers are required to offer employees with disabilities certain modifications or adjustments that enable them to perform essential work functions as if they did not have a disability. This is called a “reasonable accommodation” and employers are compelled to provide them unless offering a reasonable accommodation would pose an undue burden on the employer. The ADA defines undue burden as an action by the employer that would require “significant difficulty or expense.” Importantly, absent an undue hardship, although employers are required to offer a reasonable accommodation, they are not required to offer the employee’s preferred accommodation. An employer determines an employee’s reasonable accommodation by engaging with the employee in an “interactive process.”
In the context of an employee seeking time off to travel out-of-state to receive abortion care, an employer’s obligations under the ADA would be triggered if 1) an employee had a pregnancy-related disability; 2) time off from work to receive abortion care was the only reasonable accommodation that would enable the employee to perform the essential functions of the job; and 3) the employer would not be unduly burdened by offering this specific accommodation. While this is a very specific set of circumstances, its occurrence is not outside the realm of possibility. Employers should seek counsel immediately if the interactive process reveals this specific scenario has occurred at their workplace.
Compliance with the FMLA
Unlike with the ADA, employees, in addition to employers, must be statutorily “qualified” to access the Family and Medical Leave Act benefits. An eligible employee, as defined by the FMLA, is an employee who has worked for an employer for 12 months and has worked at least 1,250 hours during that 12-month span. The FMLA also limits which employers are required to comply with it. A covered employer must have more than 50 employees globally; therefore, an employer with fewer than 50 employees is exempt from these requirements. Further complicating an employer’s compliance goals are certain state family leave laws that cover smaller businesses or require more expansive benefits.
The FMLA mandates a qualified employee gets 12 workweeks of leave in a 12-month period. The FMLA enumerates five events that entitle a qualified employee to access FMLA leave—one of these events is due to “a serious health condition that renders the employee unable to perform the job duties.”
As with the ADA, the FMLA does not recognize pregnancy, without more, as a “serious health condition” requiring FMLA leave. However, pregnancy often causes serious health conditions that entitle an employee to access FMLA leave. If a health care provider determines that a pregnant employee is suffering from a serious health condition requiring an out-of-state abortion, the pregnant employee may be entitled to job-protected leave under the FMLA.
Offering Workers’ Compensation and Health Insurance Coverage
Workers’ compensation provides health care coverage and income replacement for employees who have been injured on the job. However, workers’ compensation does not necessarily provide job protection except to the extent it runs concurrently with the FMLA or similar local statutes. Also, not all employers are required to carry workers’ compensation coverage.
The FMLA and workers’ compensation provisions can run concurrently when an employee suffers an injury on the job that is also a “serious health condition” under the FMLA. In other words, an employee may be away from the job due to receiving workers’ compensation benefits, but the employer is permitted to count the away time against the employee’s applicable 12-week entitlement to job-protected FMLA leave.
When both the FMLA and workers’ compensation laws apply, employers must provide leave under whichever law provides the greater rights and benefits to employees. Therefore, employers cannot require a worker to take time off under FMLA instead of workers’ compensation if the person’s injury makes them eligible for the benefits of workers’ compensation.
A pregnant employee may suffer an on-the-job injury that causes a “serious health condition.” If a health care provider determines that an abortion is the appropriate treatment for the serious health condition, an employee may be entitled to receive workers’ compensation health care coverage for such medical care. However, entitlement to such coverage is subject to the limits of a particular employer’s workers’ compensation plan, which is typically regulated at the state level. For comparison, many states already limit or prohibit abortion coverage in health insurance plans that are offered through state-run marketplaces. Currently, employers that are self-insured are exempt from regulation by state departments of insurance, but states that limit or prohibit abortion are expected to prohibit, specifically, self-insured employers from offering abortion benefits.
Offering Travel Benefits
Several large corporations have signaled an intention to reimburse travel expenses for employees who need to travel outside of their home states to receive abortion services. Many companies say that shareholders and customers demand that they offer these travel benefits to their employees in conjunction with their environmental, social and governance (ESG) plans. However, despite demands from stakeholders, companies offering these benefits risk running afoul of newly effective abortion restrictions. In addition to the uncertain legality of offering such benefits, there are also potential tax implications to companies that offer, and employees that receive, these benefits.
For employers with a national footprint, compliance with a patchwork of employment laws has always been a tricky dance. Employers have always struggled with being forced to offer benefits in one jurisdiction that are not required by another. Many employers mitigated their risks of non-compliance by offering, nationally, the benefits required by the most employee-friendly jurisdiction in which they operated. Following Dobbs, however, employers are faced with local prohibitions on, as opposed to the compulsory provision of, a very specific employee benefit. Therefore, employers are prevented from employing a national compliance strategy. Setting aside any organization-specific ESG obligations, employers cannot ensure compliance by broadly withdrawing all “abortion benefits” because they are still subject to federal laws that require them to offer job-protected leave and certain health benefits and that may be characterized as abortion benefits.
It is recommended to consult with counsel about how state and local laws in your jurisdiction affect your federal employment law obligations.
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