The June 2022 employment law update addresses the potential impacts on employers of the Supreme Court’s June 24 decision overruling Roe v. Wade.
Even with the leak of a draft opinion this May, the release this past Friday of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health came as a shock to many. In Dobbs, the Supreme Court approved 6-3 a Mississippi law banning most abortions after 15 weeks, and in a 5-4 opinion held that Roe was wrongly decided and that the U.S. Constitution does not provide a right to abortion. The ruling, in effect, gives states far greater ability to impose restrictions on the procedure or to impose outright bans, and the legal landscape is already changing. 13 states had in place “trigger bans,” designed to take effect if Roe were struck down, other states acted to ban abortions the day the opinion was released, and still other states are expected to act based upon their historical position on the issue. By contrast, in many other states the political demographics and existing legislation suggest that the legality of abortion is not likely to change.
Dobbs leaves employers facing numerous questions. Most notably, from a health insurance standpoint, employers will need to examine what kind of plan the company offers, as this could impact the degree to which new state laws restricting abortions could apply. Notably, in fully insured plans, where employers purchase insurance through a commercial provider subject to state regulation, new state regulations will likely impact what plans do and do not cover.
For self-funded plans where an employer assumes financial risk for providing care to its workers, the Employee Retirement Income Security Act (ERISA) federal preemption provisions may apply and, therefore, block the application of state insurance laws that might restrict access to abortion. However, ERISA generally preempts state laws that “relate to” an ERISA plan but does not preempt “generally applicable” state laws, such as criminal laws. Some states have laws that criminalize abortion, while others, such as Oklahoma and Texas, have state laws imposing civil penalties on any person or entity that “aids or abets” an abortion procedure. Such laws could be used to target employers who, for example, provide workers reimbursement to travel to a jurisdiction where the procedure is legal. The issue (and nuances) of ERISA preemption may take years to be litigated, and in the interim employers should be cognizant of the risks of potential legal action if they want to keep abortion access in states with bans.
Another issue is whether the company, or employees, can (or should) voice their opinions either in favor or against the ruling. To some degree, this would be a public and employee relations question. From a legal standpoint, although the First Amendment right to free speech generally does not extend to the private workplace, employee expression can be covered by other protections. This includes Title VII of the Civil Rights Act, which bars discrimination based on religion, and the National Labor Relations Act, which protects employees’ ability to discuss the terms and conditions of their employment. Therefore, review and potentially updating policies in areas such as social media and dress code may be beneficial for employers in order to address concerns over activism or things like wearing political t-shirts or buttons to work.
Ultimately, employers would be wise to think through the potential impacts of the Dobbs decision on their business now so that they are prepared to handle the issues that arise in the new legal landscape.
Jeff Burke is an attorney at MacElree Harvey, Ltd., working in the firm’s Employment and Litigation practice groups. Jeff counsels businesses and individuals on employment practices and policies, executive compensation, employee hiring and separation issues, non-competition and other restrictive covenants, wage and hour disputes, and other employment-related matters. Jeff represents businesses and individuals in employment litigation such as employment contract disputes, workforce classification audits, and discrimination claims based upon age, sex, race, religion, disability, sexual harassment, and hostile work environment. Jeff also practices in commercial litigation as well as counsels business on commercial contract matters.