Companies such as Google, Duolingo and Patagonia have come out and said that they will cover travel expenses for employees seeking abortions, help employees relocate to states that offer abortions and in some cases, bail employees protesting abortion restrictions out of jail.
While it’s great that companies like these and others are standing up for women’s reproductive rights, there are some grey areas when it comes to how company benefits will cover abortion services for employees.
During a webinar titled “Ensuring Reproductive Health: What Are Companies Doing?” presented by Rutgers University’s Center for Women in Business, Nadia Khamis, Director of Corporate Engagement at Planned Parenthood, said companies have reacted in various ways to abortion care since the Supreme Court overturned Roe v. Wade last month. Those companies that have come out and said they look at abortion care as a healthcare issue have moved to cover and extend benefits to their workforce to ensure abortion protections.
The companies that are covering abortion care through their benefits packages are looking to cover their entire staff, whether they are full-time employees, hourly workers or other stakeholders across their supply chain, Khamis said.
“They started establishing community health funds and thinking about emergency relief funds and other ways that they could provide financial grants outright in complement to their healthcare services,” she said.
Potential Legal Obstacles for States and Employers
Employers considering covering abortion travel outside of a group healthcare plan need to be careful to not create another group health plan as that “would raise numerous compliance issues,” attorneys at law firm Jackson Lewis wrote. Some of those issues include Employee Retirement Income Securities Act (ERISA) reporting, Health Insurance Portability and Accountability Act (HIPAA) privacy requirements and Consolidated Omnibus Budget Reconciliation Act (COBRA) continuation rights.
Providing travel reimbursement outside of an employer’s healthcare plan and treating these reimbursements as taxable income to the employee also presents risks, according to law firm Ropes and Gray.
“Such risks include having to balance the need to respect the right of an employee to keep her health care decisions private against requiring proper documentation of the expenses incurred and considering the scope of medical services for which travel reimbursements will be paid to avoid potential liability under state law for having a policy that is designed to cover travel expenses incurred only for abortions,” the law firm wrote.
This type of policy would not be governed by ERISA, “so an employer would not be able to avail itself of the argument that ERISA preemption would apply to any state law attempts to restrict this benefit,” Ryan and Gray added.
The law firm suggests employers meet with legal counsel to evaluate the risks of this type of plan.
Another obstacle for employers is whether states will be able to ban employer aid for abortion seekers. While companies have said they will pay for abortion travel for employees in states where it remains legal, states like Oklahoma and Texas have laws in place that prohibit helping someone get an abortion, which “threaten legal risks for employers and their executives who actively support abortion access for their employees,” according to Bloomberg Law.
Companies could also face the risk of being barred from doing business in states such as Texas if they cover abortion-related expenses for employees, although this might not matter to some companies. Khami said some companies are considering not doing business in states with abortion bans.
Yana van der Meulen Rodgers, a professor in the Department of Labor Studies and Employment Relations at Rutgers University and Faculty Director of the Center for Women and Work at Rutgers, said this could result in a loss of business for states with abortion bans as companies are discussing changing where their events are held as a political statement.
Privacy Considerations for Employees
While it is great that companies are looking to support employees seeking abortions, Rodgers said not all employer-offered benefits for abortions will protect the privacy of the abortion seeker.
If a company is offering abortion services through its healthcare plan, that likely will protect the privacy of the abortion seeker. But if care is offered through means of direct reimbursement, that may not protect the privacy of the abortion seeker, she said.
“People looking for these services do need to take into consideration what the privacy aspects are, especially since abortion is still unfortunately stigmatized in our society and we still need to deal with that stigma,” Rodgers added.
