Employment issues to consider while awaiting decision in Dobbs v Jackson Women’s Health Organization

The United States Supreme Court (“SCOTUS”) will imminently release its decision in Dobbs v Jackson Women’s Health Organization, and if the final ruling is consistent with the recently-leaked draft opinion (overturning Roe v Wade and Planned Parenthood v Casey), employers may soon need to contend with a variety of novel employment and benefits related issues. Some employers have already begun to consider and plan for a post-Roe workplace. Those who have not would be wise to do so now, to best ensure a well-coordinated and thoughtful approach.

For example, some employers have publicly announced plans to provide expanded healthcare benefits, travel, lodging and other benefits to employees who may seek abortion-related services in states where those medical services will be prohibited or limited.  These benefits raise complex legal issues applicable to employers’ group health plans and fringe benefit plans, including conflicts between federal and state law, federal ERISA preemption and potential employer civil and/or criminal liability for providing these benefits.

Additionally, whatever the ultimate ruling, there is likely to be significant public reaction to the Dobbs decision, including from employees.  Employers may be faced with employee conduct such as walkouts or other reactive behavior in the immediate moments or days following SCOTUS’s release of the decision.  In addition, employers may also have to grapple with pressure from many constituency groups, such as customers, employees, shareholders or Boards of Directors, to take a public position on abortion rights, or to change policies or benefits in light of the ruling.  Employees may take to social media to express their beliefs or do so while at work, via their clothing or accessories, or an e-mail tagline in their signature block. It is important for employers to know what laws might apply, and what options they have available to them to address these kinds of conduct.

Employers may also encounter new types of requests from employees, such as an application to transfer to a different worksite because employees may be unhappy with their state’s laws regarding abortion, or leave requests for abortion-related medical care.  If an employee seeking an abortion resides in a state where it is illegal wishes to travel to a state where abortion is permitted, the employee may ask for time off, or even reimbursement to cover the cost of travel.  Such requests are likely to have implications under various laws.

Useful tools to get ahead of some of these issues include:

• Supervisor training: It is important for managers to understand how to avoid, limit, or address possible discrimination claims based on such categories as protected concerted activities, religion, political beliefs, pregnancy, and caregiver/familial status.  Managers also need to understand confidentiality obligations with respect to employee health records, and possibly how to address interpersonal – or even physical – conflicts that may arise between employees with differing views on abortion rights, among other topics.

• Policy review: Employers should review employment policies to address as many anticipated issues as possible, including for example, harassment, social media use, off duty conduct, dress code/uniform, and background checks.

After SCOTUS releases the Dobbs opinion, some of the above impacts will be immediate, while other challenges are likely to emerge over time.