Shortly after the June 24th announcement of the Supreme Court’s landmark decision overturning Roe v. Wade, more than two dozen organizations including giants like Disney, Amazon, and Tesla, came out publicly in support of women’s reproductive rights by offering travel benefits to employees to seek abortions in those states where the procedure is still legal.
However, other major organizations like Meta and Wells Fargo have not rushed to join their peers in making immediate policy changes to their reproductive benefits practices.
This begs the question, what are the legal impacts of offering travel benefits to employees who wish to cross state lines in search of these services? In this article, we’ll outline what employers need to consider before altering their benefits policies. Read on for important information that could benefit your organization.
Important Legal Considerations for Employers
When it comes to employee benefits, employers want to create an attractive package that’s both cost-effective and compliant. But recent changes to the federal law regarding reproductive healthcare have employers and HR unsure of how to navigate these issues without violating state and federal abortion laws. Furthermore, organizations are simultaneously trying to remain compliant with the myriad of employment regulations that currently exist.
As a result of the Supreme Court’s recent action, many states are rushing to create legislation that will circumvent or alter abortion restrictions, and this is causing the legal landscape to constantly shift. As a result, organizations will need to be extremely vigilant and adjust their benefits policies accordingly as these changes occur, in order to remain lawful and compliant.
The sheer number of legal changes may seem overwhelming, but in taking a closer look, they can be grouped into two categories–those that involve state laws and those that deal with employment compliance. Violating laws that fall into either category can be costly to an organization’s finances and to its brand reputation.
How to Navigate State Laws Affecting Abortion Policies
With regard to state law, be aware of how each state has been affected by the Supreme Court’s ruling, especially for those states where your organization conducts business. If your organization operates in multiple states, your policies will perhaps be more complex, as they will need to abide by individual state laws.
Guttmacher Institute, a leading research and policy organization committed to advancing reproductive health rights worldwide, maintains a comprehensive database of laws for each state. This is a great resource for employers to find the most updated information regarding abortion laws.
Employers should also be aware of the Pregnancy Discrimination Act as it’s currently the only federal law that speaks specifically to abortion and it provides details about the employer’s rights and responsibilities.
Lastly, when it comes to state laws, it’s simply not enough to know those states that allow abortion and those that don’t. There are other laws related to reproductive care that could seriously affect employers when drafting travel policies for reproductive care.
Take for example a Texas law that allows private citizens to sue anyone who “aids and abets” a pregnant person who gets an abortion, or a proposed Missouri amendment that would make it illegal for an abortion to be performed on a resident or citizen of that state.
How Can Organizations Remain Compliant?
In terms of employment compliance, organizations must pay close attention to the requirements of the ACA, ERISA, HIPAA, and COBRA. Specifically, it’s important to understand how each of these could shape travel reimbursement benefits surrounding abortion.
For example, according to ACA and ERISA regulations, the best approach to remaining compliant may be to simply offer taxable reimbursements for travel expenses. And since HIPAA's main focus is protecting the privacy of employee health records, employers need to be aware that by offering reproductive care benefits there exists the potential to violate its provisions. Therefore, it may be best to have a third-party administrator handle the employee benefits process.
Also, it’s worth noting that employers who offer self-funded benefit plans to their workforce may have more flexibility than those offering fully-funded plans due to provisions of ERISA that will exempt them from state insurance laws. Essentially, knowing what type of benefits plan you have will help you determine the parameters of any type of reproductive care benefits plan allowed to be offered.
For those companies that want to offer travel reimbursement benefits to their employees, know that the legal landscape is constantly shifting so it’s important to remain within the legal boundaries of the law–and the best way to accomplish this is for employers to work closely with benefits professionals and legal counsel when designing and drafting policies. While it may appear costly on the front end, it could save you in the long run on litigation costs.
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