On Friday, June 24, c Dobbs v. Jackson Women’s Health OrganizationThe United States Supreme Court overturned Rowe vs. Wade and ruled that the United States Constitution did not protect a woman’s right to terminate her pregnancy.
After Dobbs, some employers are considering adding or modifying abortion benefits provided under their employer-sponsored group health plans, including travel expenses. Although it is currently unclear whether and to what extent employers can offer these benefits without potentially violating applicable state law, below are some immediate actions and considerations for employers:
- Review the group health plan: An immediate step is to review the group health plan (including pharmacy benefit provisions) and consult with the third party administrator of the plan to determine what the plan covers and ask if any changes are necessary or desirable. Many group health plans already impose restrictions on abortion coverage. For example, a group health plan may be developed to limit coverage to those situations in which the pregnancy is the result of a criminal act or the woman’s life is at risk. Thus, in some cases, the plan may already comply with many (not all) exceptions to state law.
Self-insured clients who wish to limit abortion benefits may be able to do so, but employers must continue to comply with other applicable laws, including Title VII of the Civil Rights Act and the Pregnancy Discrimination Act. Title VII prohibits discrimination on grounds of sex (which may be related to restrictions on reproductive health care), and the Pregnancy Discrimination Act prohibits discrimination on grounds of pregnancy when it comes to all aspects of employment, including employment, dismissal, pay, employment, promotions, dismissals, training, additional benefits such as leave and health insurance, and any other working conditions. In addition, the FMLA provides unpaid protective leave to eligible employees for serious medical conditions, which may include pregnancy and pregnancy-related health conditions.
- Protected work leave related to abortion: With respect to medical problems related to abortion, an employee may be entitled to leave under federal law.
The Pregnancy Discrimination Act (PDA) requires an employer who allows employees with temporary incapacity to take sick leave or unpaid leave to extend the same benefits for the leave of an employee who is temporarily disabled due to pregnancy-related conditions. , including abortion-related conditions. The PDA applies to employers with 15 or more employees.
Under the Federal Family and Medical Leave Act (FMLA), an employee may be entitled to unpaid, protected leave due to inability to work related to abortion if the employee’s health care provider deems that he or she has a qualified 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), as long as pregnancy is not considered a disability, complications arising from pregnancy can be. An employer may not discriminate against a person whose pregnancy-related injury is considered an ADA injury and must provide the person with reasonable accommodation, unless such adjustment would lead to unnecessary difficulties. When a pregnancy is terminated due to an injury, the employee must be provided with reasonable accommodation (which may include protective leave), unless this would lead to significant difficulties or costs for the employer. The ADA applies to employers with 15 or more employees.
- ERISA Preemption: With regard to the self-insured health plans subject to the Employee Retirement Income Insurance Act (ERISA), ERISA is ahead of all state laws that are “related” to the health plan. However, it is unclear whether ERISA anticipation will save all the benefits associated with abortion. For example, the court might find that a general ban on the payment of abortion benefits is not sufficiently ‘linked’ to a group health plan to trigger a preventive action by ERISA, but is instead a law of general application. Furthermore, insofar as state law criminalizes the benefits of abortion, ERISA’s preventive action does not normally apply to criminal law.
With regard to fully insured plans, ERISA is not ahead of state insurance laws. Therefore, the state’s insurance laws may prohibit an insurance policy from paying for abortion benefits in that particular state. It is less clear whether a state can prohibit (or require) a group health insurance policy that pays abortion benefits received by its residents who travel to another state.
- Travel 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 the group health plan, the benefits will be taxed by the employee. In particular, if state law criminalizes “aiding and abetting” abortion, travel benefits may be considered as aiding and abetting and may subject the employer, the group health plan, the TPA, and some law enforcement officials, including criminal actions. It is uncertain whether a state could (or would try) to prosecute a person outside the state for conduct and payment made outside the state. Further analysis by Husch Blackwell on this topic is forthcoming.
- Allied employees: For employees who are the subject of collective agreements, employers should consider their obligations under the agreement, as any changes in coverage, including the addition of travel-related benefits, may be negotiable.
These comments are not the final word, and many of these problems are likely to play out after years of litigation.