Post-Roe, how can employers prepare for legal complications?

After the Supreme Court last month announced it was reversing Roe vs. Wade, the landmark 1973 case that ensured the rights of women to terminate a pregnancy, a host of questions and complexities immediately arose for employers. States are swiftly enacting their own laws about abortion rights, with several banning abortion in all circumstances, while President Biden last week signed an executive order intended to protect abortion and contraception access in the aftermath of the ruling.

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While confusion related to the dismantling of the nearly 50-year-old ruling is widespread, there is one certainty: A host of legal obstacles will be coming for employers.

“This is very complex for employers,” says Lara Shortz, firm recruiting partner at Michelman & Robinson, LLP, a national law firm. “From an HR perspective, you’re going to really need to understand what the law is in the different states that you operate within.”

So, what legal issues are at play? And how can employers best prepare for them? For answers, HRE spoke to Shortz.

HRE: Walk me through the legal obstacles that exist for employers with changes to abortion policies.

Shortz: It’s now a states’ right issue; the issue is going to vary greatly from state to state, so who’s going to be impacted is going to be heavily influenced by location. And also the type of healthcare plans that [an employer has] and if they have plans that cover employees in multiple states—some where the laws are different than in others—that can have an impact.

Some of the laws have provisions in them that not only make abortion criminal, but make the assistance—aiding and abetting—in assisting someone get an abortion, criminal and illegal. Because all of these laws are going to be fairly new, we’re not going to really understand the parameters of what that means until cases start being brought. From a company perspective, I think what you’re going to see is a pretty conservative approach in those states because nobody wants to be the first person to try to figure out if that law applies to them.

HRE: For companies that are helping, or plan to help, employees get access to abortions, do you expect lawsuits might follow from states that ban abortion?

Shortz: Because it’s such a hot-button issue, and people are so fired up about it on both sides, I could definitely see that happening. I wouldn’t be surprised if you see that kind of legal activity in in Texas, for example.

HRE: Bigger companies, so far, have mostly been the ones that have spoken up and announced changes or updated benefits in light of the ruling. Do you think more will announce policies to help employees access abortions, or will they be hesitant because of potential lawsuits? And what about smaller companies?

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Shortz: Larger companies, like a Starbucks, for instance, might be willing to put the dollars behind that kind of legal fight because they see the social perspective as worth it and want to make a stance. But certainly if you’re talking about your mid-size or family-run businesses, I think they will be more quiet. I just don’t see anybody wanting to be tied up in a legal battle over this.

HRE: How will those abortion travel benefits work from a compliance lens?

Shortz: Depending on what jurisdiction the company operates in, there are going to be certain benefit plans where you can do that. But there also are going to be a lot of situations where that’s going to be more tricky, so what you’re going to have is a reimbursement type of policy. For employees, that doesn’t impact the actual benefit plan because that starts to get into ERISA-type issues. I think what we’re seeing a lot of is companies saying, “Hey, we’re looking into our options, we’re going to figure out what is the best option for us.” I think, certainly, a reimbursement program is going to fly under the radar more than a full-on benefits plan.

HRE: For employers that are operating in multiple states and that will have to navigate a patchwork of different state laws, what should those companies be doing right now?

Shortz: First and foremost, they should be calling their benefits brokers to really understand what is allowed under their plan, whether there is some flexibility with respect to different jurisdictions and what the parameters are under their particular [health] plan. Once they understand what those parameters are, and if they want to help ensure their employees’ access to abortions, then they’ll be able to figure out: Is this something we can do through our healthcare plan, or is there a separate policy [we can add]? And then they can work with their lawyers to create a policy that doesn’t get them into trouble.

The difference between this issue and some of the other issues that we deal with is that some of these new laws really create criminal liability and significant civil liability. So, that’s what we want to avoid. Employers want to be very mindful about what these laws say in certain jurisdictions and how they can support their employees in a way that also isn’t creating a much bigger issue.

HRE: What do you expect is going to shake out in the next couple of months? And how can employers best prepare for that?

Shortz: We are going to see more laws being passed [regarding abortion rights], and employers have to just be very mindful of what’s happening wherever they’re operating. You’re going to see some employers that are like, “I don’t want to touch this issue at all.” We’re also going to see many employers, and we’ve already seen many employers come out, and say, “We want to support our workers, and if they need this kind of care, we want to support them. We’re going to provide travel and lodging expenses.”

But what does that mean [to provide those benefits]? People are going to need to get sort of buttoned up on these things: Is that in the next available state? Is it the closest area that provides the services? What kind of travel and lodging support will you provide? And whether [offerings] are for your employees themselves, or whether it’s for your employees and their family members. Plus, who constitutes a family member also varies from state to state. It’s great to come out and say [you’re going to offer new benefits to help] but there has to be a lot of thought put into the rolling out of any policy and how you’re going to handle that evenly across the board.

There are a lot of issues that come up with this. But HR is going to be the one that has to really sit down and budget it out and figure out what’s feasible or not.

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Kathryn Mayer
Kathryn Mayer is HRE’s former benefits editor and chair of the Health & Benefits Leadership Conference. She has covered benefits for the better part of a decade, and her stories have won multiple awards, including a Jesse H. Neal Award and honors from the American Society of Business Publication Editors and the National Federation of Press Women. She holds bachelor’s and master’s degrees from the University of Denver.