The legal complexities facing companies supporting staff in the wake of Roe v Wade

In the days fol­low­ing the Supreme Court’s rul­ing on Roe v Wade, which over­turned the con­sti­tu­tion­al right to abor­tion in the US, a num­ber of cor­po­ra­tions rushed to promise sup­port to employ­ees.

Dis­ney, Google, Star­bucks, Yelp, Airbnb, Net­flix, Patag­o­nia and JP Mor­gan were among some of the first com­pa­nies to promise finan­cial assis­tance for staff who live in states impact­ed by the rul­ing, and who will now have to trav­el to access repro­duc­tive care.

Aus­tralian graph­ic design com­pa­ny Can­va, which has offices in San Fran­cis­co and Austin, Texas, com­mit­ted to cov­er­ing the costs of trav­el and accom­mo­da­tion for its US staff and a per­son to sup­port them when seek­ing abor­tion care.

Texas was one of the states to have a so-called trig­ger law, which would be effec­tive 30 days after the Supreme Court reached its deci­sion and would almost entire­ly out­law abor­tion in the state.

A spokesper­son for the com­pa­ny says: “We are deeply con­cerned by the Supreme Court’s deci­sion to over­turn Roe v Wade… Can­va is com­mit­ted to cre­at­ing an envi­ron­ment where our team feels safe and sup­port­ed in the per­son­al choic­es they make for them­selves and their fam­i­lies.”

The swift response from cor­po­rate Amer­i­ca is admirable and both demon­strates these busi­ness­es’ com­mit­ment to women’s rights while pro­vid­ing some reas­sur­ance to their employ­ees. 

How can companies support staff?

Aman­da Mon­roe, senior labor and employ­ment asso­ciate at US law firm Michel­man & Robin­son LLP, says employ­ers can pro­vide sup­port in myr­i­ad ways, includ­ing expand­ing health­care plans and pro­vid­ing leave.  

She adds: “Beyond that, we may see employ­ers take on the risk of con­tin­u­ing to offer pre-exist­ing trav­el and relo­ca­tion ben­e­fits and/or expand­ing health ben­e­fits to include trav­el and lodg­ing ben­e­fits for those seek­ing abor­tions.” 

But employ­ers should be wary of the poten­tial legal con­se­quences of help­ing. Mon­roe says that many will “need to con­sid­er the extent to which spe­cif­ic state laws restrict­ing abor­tion may impact leave accom­mo­da­tions, health­care plans and employ­ment prac­tices”.

Face­book par­ent com­pa­ny Meta was one of the com­pa­nies to promise to reim­burse out-of-state trav­el for those seek­ing an abor­tion. But it clar­i­fied in a state­ment to the New York Times that any sup­port would only be to “the extent per­mit­ted by law”. The spokesper­son added: “We are in the process of assess­ing how best to do so giv­en the legal com­plex­i­ties involved.”

Could companies be caught aiding and abetting?

In some Repub­li­can states, aid­ing access to repro­duc­tive care has also been made ille­gal. In Texas and Okla­homa, for instance, any­one that is seen to be help­ing those get an abor­tion after the sixth week of preg­nan­cy could be sub­ject to a civ­il law­suit.

Bloomberg Law states that such boun­ty mea­sures “most clear­ly tar­get employ­ers” and allows cit­i­zens to sue any­one who is seen to be aid­ing and abet­ting an abor­tion. This could include pay­ing for or reim­burs­ing the costs of an abor­tion through insur­ance.

Mahir Nis­ar, prin­ci­pal at employ­ment lit­i­ga­tion firm Nis­ar Law Group, con­sid­ers it one of the biggest poten­tial legal issues sur­round­ing the changes to abor­tion rights that employ­ers will have to con­sid­er.

Adding to these legal com­plex­i­ties is the poten­tial for employ­ees to chal­lenge com­pa­nies that don’t extend their abor­tion poli­cies to all. Nis­ar adds: “If employ­ers do not apply their pol­i­cy even­ly, with respect to reim­burs­ing employ­ees seek­ing an abor­tion, they may be engag­ing in dis­crim­i­na­tion against that indi­vid­ual and not treat­ing them fair­ly.”

For busi­ness­es with a pres­ence in mul­ti­ple states, offer­ing sup­port to staff work­ing in states with aid­ing and abet­ting laws in place will leave them at risk of being sued. But equal­ly, if their poli­cies only apply to staff in cer­tain states, they could be chal­lenged on the grounds of dis­crim­i­na­tion. “This makes it some­what dif­fi­cult for com­pa­nies to nav­i­gate,” Nis­ar says.

The importance of employee privacy in abortion cases

The oth­er key con­sid­er­a­tion for com­pa­nies adopt­ing these types of poli­cies will be pri­va­cy.  

Mon­roe says: “Employ­ee pri­va­cy remains para­mount. Com­pa­nies, espe­cial­ly those offer­ing trav­el-relat­ed reim­burse­ments for employ­ees now required to trav­el out of state to obtain fam­i­ly-plan­ning care, will have to bal­ance the need for employ­ee pri­va­cy rel­a­tive to med­ical deci­sions and treat­ment against inter­nal poli­cies requir­ing prop­er doc­u­men­ta­tion for expens­es.”

Employ­ers may have to revis­it their cur­rent health­care pro­vi­sions or vaca­tion poli­cies to pro­tect the con­fi­den­tial­i­ty of staff. Mon­roe advis­es that organ­i­sa­tions could con­sid­er expand­ing the list of med­ical treat­ments that are eli­gi­ble for trav­el expense reim­burse­ment and/or time off, to “avoid the poten­tial expo­sure of sen­si­tive and pri­vate med­ical infor­ma­tion”.

To address this, com­pa­nies can con­sid­er includ­ing all abor­tion-relat­ed care under their exist­ing list of med­ical treat­ments that can incur med­ical-relat­ed trav­el expens­es, such as reha­bil­i­ta­tion or can­cer treat­ment. This would allow staff to apply for a reim­burse­ment, with­out hav­ing to spec­i­fy the rea­son. 

For those that can’t offer this to staff on their health­care plans, LaDawn Townsend, founder of CEO advi­so­ry firm VOS Group, says: “There needs to be a way for the employ­ee to direct­ly talk to some­one senior with­in HR, who can then com­mu­ni­cate with the man­ag­er if there’s been an action tak­en or a ser­vice pro­vid­ed, with­out get­ting into the details. 

“Organ­i­sa­tions are real­ly going to have to tight­en up on their inter­nal employ­ee com­mu­ni­ca­tions and human resource stan­dards.”

Sim­i­lar­ly, employ­ers may con­sid­er remov­ing the need to pro­vide a rea­son when seek­ing leave for med­ical treat­ment. Nis­ar says: “A lot of employ­ers are say­ing they don’t need to know the rea­son for the med­ical pro­ce­dure but we’re yet to see how that works in prac­tice.”

Roe v Wade: business leaders need to work on their response

As with any new leg­is­la­tion, there will be a peri­od of adap­ta­tion for busi­ness­es. Townsend says: “Lead­ers need to make sure that they don’t put their head in the sand around this issue. The con­ver­sa­tions around this are already hap­pen­ing in the work­place, so it makes for an odd work envi­ron­ment if we don’t address the ele­phant in the room, espe­cial­ly for those that have tak­en a pub­lic stance on their view­points.”

Although many com­pa­nies were quick to pledge their sup­port for employ­ees in the wake of Roe v Wade, we are yet to see how many of the pro­posed relo­ca­tion and reim­burse­ment poli­cies will work in prac­tice. 

Nis­ar claims that many of the respons­es from the cor­po­rate world could be seen as “brand­ing” among com­pa­nies that are keen to be seen to be “on the right side of his­to­ry”. In his opin­ion, it will now be down to these com­pa­nies to devel­op the prop­er poli­cies to sup­port women in their organ­i­sa­tions and demon­strate that it is more than “per­for­ma­tive ally­ship”.