HR and Employer Considerations in a Post-Roe v. Wade Workplace

In a controversial decision earlier this month, the U.S. Supreme Court overturned its long standing Roe v. Wade ruling from 1973. For almost 50 years, the landmark ruling protected a pregnant woman’s liberty to choose to have an abortion. 

With the recent Dobbs v. Jackson Women’s Health Organization decision, abortion has not been made illegal nationwide. Rather, it removes the federal right to abortion access and grants states the ability to pass stricter abortion laws. In many states, these stricter laws are already in place or will be soon.

It is no surprise that the case is a highly complex issue that encompasses politics, religion, healthcare, and personal privacy. No matter how hard companies attempt to keep these topics out of the workplace, doing so is difficult. The most recent presidential elections showed just how much political and social issues have crept into the office space. 

READ: HR Tips for Handling Politics Inside (and Outside) of the Office

Personal politics notwithstanding, the recent Supreme Court decision has far-reaching implications for businesses of all sizes, HR departments, and countless employees. In the wake of this monumental turn, employers have questions and concerns about its effects on employment law, medical plan coverage, and employee privacy in a post-Roe v. Wade workplace.

Workplace discussions and conduct

Opposing views, arguments, and being in the minority opinion can lead to discrimination complaints and a hostile work environment. Open discussion may also bring with it past trauma and emotional distress for some employees. 

HR can anticipate such seemingly unavoidable discussions and provide managers with guidance on recognizing and how to handle these tense situations before they turn into a serious distraction or legal liability. 

Employers should also develop and communicate a process for addressing concerns and complaints regarding discussions and behaviors around this sensitive topic.

Employee discrimination

Employees have workplace protections under existing federal anti-discrimination laws that apply to this situation. 

• Title VII of the Civil Rights Act of 1964 bans employment discrimination based on color, national origin, race, religion, and sex.
• The Pregnancy Discrimination Act (PDA) of 1978 clairifies that discrimination based on pregnancy, childbirth, and related medical conditions is also considered unlawful sex discrimination under Title VII.

As shown by the Equal Employment Opportunity Commission (EEOC), employers are prohibited from firing an employee for having or considering having an abortion under these laws.

Employee privacy

If an employee discloses the purpose for their leave to their employer, employers must keep this information confidential. An employer could have significant liability with respect to the employee’s privacy.

Health Insurance Portability and Accountability Act (HIPAA) requirements govern the use and disclosure of protected health information (PHI). Additionally, employers cannot make employment decisions based on PHI that is obtained from a group health plan. 

Additionally, the Americans with Disabilities Act (ADA) requires employers to treat any information obtained from a medical inquiry or examination as confidential. This includes medical information from voluntary health or wellness programs.

Employers should put in place mandatory renewed training for all HR and managerial personnel who handle personal information.

• Leave documentation
• Health insurance information
• HR administrative information

DISCOVER: Benefits of Using a Learning Management System for Employee Training

Employee leave and benefits

One of the most significant considerations being discussed by employers is what, if any, benefits and accommodations should be made available to employees in a state where abortion services are no longer legal, but who would like to consult with a physician about such services.

According to a recent SHRM survey, only 32% of employers currently offer paid time off to access such care. More companies are likely to consider adding similar benefits in a post-Roe v Wade workplace, including:

• Increasing health saving account (HSA) contributions for such services (10%)
• PTO for employees to access reproductive care (7%)
• Relief funds for employees to access such care (7%)
• Travel expense benefits outside of a health savings account (6%)
• Company match for employee charitable donations in support reproductive rights (5%)
• PTO to attend marches, protests, and similar events in support of reproductive rights (5%)

Additionally, companies might look to expand new parent benefits. If more women, especially those with lower incomes, are forced to give birth rather than exploring abortion options, they will need support. Exploring paid parental leave, child caregiving benefits, and flexible work schedules could also be beneficial for employers and employees alike.

READ: How Can HR Help Support and Retain Working Mothers?

Additional Resources for Post-Roe v. Wade in the Workplace

• Navigating Roe v. Wade in the Workplace: ​From Confidentiality to Benefits to Culture (SHRM)
• FAQs on the Overturning of Roe v. Wade (SHRM)
• An Employer’s Guide to Workplace Protections for Abortion-Related Decisions (Fisher Phillips)
• Employer Considerations in a Post-Roe Environment (Benefits PRO)
• Employer Abortion Benefits: How to Keep Employees’ Information Safe? (Benefits PRO)
• Many Employers are Promising Abortion Travel Benefits. How Will They Work? (HR Dive)
• Employers Offering to Cover Travel for Out-of-State Abortions Must Monitor Changing Laws (Benefits PRO)
• Providing Abortion Travel Benefits at Your Company? Here’s How to Protect Employees (Benefits PRO)

DISCLAIMER: The opinions expressed are those of the author(s) and do not necessarily reflect the views of Netchex or its clients. This post is for general information purposes only and is not intended to be and should not be taken as legal advice.

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