- Before and after Roe v. Wade was overturned, some companies have said they would support employees seeking an abortion.
- Offering an abortion travel benefit isn't as simple as it sounds, especially when a company has an obligation to protect an employee's privacy.
- Insider spoke to experts about what the decision means for pregnant employees and their rights.
The Supreme Court decision to overturn Roe v. Wade is leaving questions for employers and their employees on what to do if an employee is seeking an abortion.
Some major companies, like Amazon and JPMorgan Chase, have said they would pay for employees to travel to seek a safe and legal abortion. But even with the travel benefit, seeking an abortion isn't easy, especially in the 13 states where Legislatures passed trigger laws that banned abortion as soon as Roe v. Wade was overturned. Six states have already banned abortion, and 12 states face either an imminent ban or severe restrictions.
While some companies have come forward to support employees seeking an abortion, it's not as simple as that. Laws in the workplace protecting pregnant people from discrimination and securing employment could face challenges from states banning abortions.
Insider talked to workplace experts about what the decision means for pregnant employees in the workplace, and what it means for employers.
Can an employer fire an employee if they find out the employee had an abortion?
The Pregnancy Discrimination Act of 1978 (PDA), which was amended from Title VII in the Civil Rights Act of 1964, protects against discrimination and harassment in employment based on pregnancy, childbirth, or medical conditions related to pregnancy, but it does not specifically mention abortions. Guidance from the US Department of Labor indicates that abortions are protected from discrimination.
The PDA does mention that employers don't have to cover the costs of an abortion except in certain circumstances (such as the mother's health being in danger, or complications arising from an abortion). Therefore, coverage against discrimination is uncertain under the PDA.
But Michi McClure, chief compliance and privacy officer at women's health and personal care website Favor, argued that with the PDA, Congress covered the decision to receive an abortion, and that employers can't fire or refuse to hire a person for exercising their right to an abortion.
"If someone is fired for having an abortion, they could potentially win a lawsuit against the employer for wrongful termination under the Pregnancy Discrimination Act," McClure said.
McKensie Mack, founder of research and change management firm MMG, said we don't yet know how laws around abortion will be carried out from state to state.
"At this point, most trigger laws restrict providers from providing abortions, and threaten fines and jail time for medical providers who offer abortions to patients in states where abortion is or is soon to be banned," Mack said.
Mack argued that the Equal Employment Opportunity Commission protects all employees having an abortion, not having an abortion, or contemplating having an abortion. The EEOC is the agency that enforces federal laws making discrimination based on several factors, including pregnancy, illegal.
"This means it would be against the law for a director to pressure a direct report not to have an abortion, in order to keep a position, receive a promotion, or abide by the director's anti-abortion stance," Mack said.
But, they noted that just because a law has not been passed and legislation has not be introduced to make abortion illegal, doesn't mean employees won't be discriminated against if they have an abortion.
Can an employer fire an employee for having an abortion if it conflicts with the employer's religious or personal beliefs?
Title VII protects employees from religious discrimination and harassment, too.
"Employers would be hard-pressed to prove in a court of law that an individual of their own consent and volition having an abortion is somehow an expression of harassment or religious discrimination against another individual whose body and reproductive autonomy are not involved in that process, but that doesn't mean it can't happen," Mack said.
How can an employee protect their privacy if they need to use their company's travel benefit, but don't want to disclose that they are seeking an abortion?
When an employer offers to pay for abortion care travel, McClure said the company needs to protect the employee's privacy, while at the same time accurately documenting the expense to the business.
"The business is obligated to ensure the funds are being spent as intended, which would not be possible without the employee disclosing the purpose of requesting said funds," McClure said.
If an employee can pay for their own travel expenses, McClure said they can keep the information about their abortion private by taking paid time off.
Sarah Raii, an attorney at McDermott Will & Emery who focuses on employee benefits, said in a statement that employers should be careful when considering how to offer abortion benefits to avoid conflict with federal laws around health care benefits.
"Incorporating abortion benefits into an employer's existing health plan might help mitigate worker privacy concerns," Raii said, "since health plans are subject to the Health Insurance Portability and Accountability Act of 1996 (HIPAA)."
If an employer or other people at the company find out an employee has had an abortion from means other than the employee disclosing the abortion themselves, Raii told Insider it would raise privacy and HIPAA red flags. Employers are not permitted to look at confidential and protected health information.
Overall, how is the workplace going to change for people who receive abortions or want to seek an abortion?
The experience for employees seeking an abortion will differ from state to state as each Legislature decides what to do post-Roe.
Raii said employers who are concerned about employees' access to abortion services, should evaluate their options as soon as possible with legal counsel.
"Depending on the intensity of the legislation, those who are already most vulnerable in our society, including women, queer and trans people, black and brown people, disabled folks, and folks living at or below the poverty line will be most at risk of facing termination or other forms of discrimination based on their commitment to their own bodily autonomy and reproductive freedoms," Mack said.