A legal battle between employers offering abortion travel benefits and states that ban abortion may be brewing.
Following the overturning of Roe v. Wade, Jack Altman, CEO of Lattice, wrote a memo to its 700 employees stating that the company will reimburse employees for travel “to access essential medical services that are prohibited in their home countries. This may interest you : Texas nurses worried about women’s health care in the post -Roe era.” But it is an abortion travel benefit that can carry risks.
Lattice, an HR software provider, is based in San Francisco, California, a state where abortion procedures are legal. But about “10% of our current employees live in states with trigger bans or states that have pending restrictive legislation,” a spokeswoman wrote. The company did not want to identify the states where employees live, calling it protected information.
There may be good legal reasons for companies like Lattice to keep this information private, given the ripple effect of the Supreme Court ruling. For example, a group of Texas lawmakers want to see criminal prosecutions of corporate executives who provide abortion travel benefits to Texas-based employees.
Zeroing in on abortion travel benefits
Texas State Representative Briscoe Cain, a Republican from Deer Park, along with 13 other state lawmakers, will introduce anti-abortion legislation in the next legislative session. Their bill seeks to expose corporate directors and officers to “criminal penal prosecution if they use corporate resources to pay for abortions or reimburse abortion-related expenses.”
Threats of lawsuits from lawmakers “so far have been vague and unsupported by state law,” said Noreen Farrell, a civil rights attorney and executive director of Equal Rights Advocates, a law firm in San Francisco. See the article : Netflix begins second round of layoffs, 300 positions cut (EXCLUSIVE).
And they’re not stopping companies from extending these services to employees, including enterprise giants, such as Austin-based Tesla, as well as Amazon, Microsoft, Salesforce and Starbucks. They are not powerless to retaliate. They employ thousands of people in states that ban abortion and spend millions lobbying lawmakers, legal experts noted.
“The next wave of business won’t just be on defense, it will be on offense,” Farrell said.
At this time, however, no state prohibits employers from covering travel costs to obtain an abortion, Farrell said.
Lawmakers in states banning abortion may also face a hurdle in Brett Kavanaugh’s concurring opinion, Farrell added. The associate judge wrote that a state cannot prohibit someone from traveling to another state to obtain an abortion “based on the constitutional right to interstate travel.”
Still, “states can determine what’s criminal within their borders, and we expect that to really be a strategy to protect abortion bans in some states,” Farrell said.
Employers could find coverage for abortion reimbursements in federal law governing employee benefits, such as the Employees Retirement Income Security Act of 1974 (ERISA), she said. ERISA prohibits states from adopting requirements for employer-sponsored health plans. Employers could use other workarounds to protect themselves, such as characterizing reimbursements for early pregnancy leave or covering general travel expenses for employees, Farrell said.
Some take wait-and-see approach
Employers will need to consider the issue methodically, said labor and employment attorney Michael Elkins, partner and founder of MLE Law in Fort Lauderdale, Florida. On the same subject : Netflix is cutting even bigger than you think (Bloom).
Employers need to determine if a state has a “provision that provides penalties for helping someone get an abortion,” he said. And if so, a company will also need to see what constitutes aid and how the state intends to apply it, he said.
Elkins said employers can try to protect themselves, such as categorizing an abortion travel benefit as a general medical expense, but can still face issues in aggressive condition. Such a state can test the limits of the employer’s abortion travel allowance by noting that the employer did not offer it until Roe v. Wade be canceled, he said.
Major employers have been quick to offer the abortion travel allowance, “but I’m not sure those are the employers these local jurisdictions will go to,” Elkins said.
A survey of HR managers and business executives conducted by Gartner late last month before the court ruling found that 60% of large and medium-sized employers would offer no new benefits, which, according to research firms, indicates that HR managers are waiting to see how other companies respond.
HR departments want to “see what their colleagues are doing,” said Crystal Styron, Gartner’s HR practice leader.
Lattice is a company that has decided not to wait. In the employee memo, Altman wrote that her family had just welcomed a second child, “and like so many other families, our path to reproduction was deeply personal.”
“The decisions we’ve made along the way have been some of the most nuanced and private decisions we’ve made in our lives; and we believe that’s the way it should be. This is the women’s bodies, health and agency – the idea that these choices could be made by government rather than between families and their doctors is extremely troubling to many of us,” Altman wrote.
Patrick Thibodeau covers HCM and ERP technologies for TechTarget. He worked for more than two decades as a corporate IT journalist.
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