.The implications of the U.S. Supreme Court’s verdict on Dobbs v. Jackson Women’s Health Organization which upheld Roe Wade. Wade’s rights to abortion under the Constitution have profound implications for employers as well as the general population.
The gap in state laws continues to increase particularly with the Biden Administration’s decision to issue. An executive order instructing that. The United States Department of Health and Human Services to broaden. The access to medical abortion pills and to encourage more strict implementation. The coverage for birth control in the Affordable Care Act. Employers operating across state lines face a plethora of contradictory and changing laws. Some employers offer the possibility of paying for travel expenses for employees who have to travel to another state for an abortion.
These are the things employers must know about:
- Employer Provided Travel Benefits in Response to Dobbs and State Prohibitions on Abortion
- Leave Considerations
- Broadly Available Travel Reimbursements
Excepted Benefit Health Care Flexible Spending Account (“EBFSA”) and Excepted Benefit Employee Assistance Plan (“EAP”).
Taxation of Medical Travel Benefits
Self-Administered as compared to. Third Party-Administered Benefits
Haftung under Anti-Abortion Laws
As with the public at large businesses are reeling over U.S. Supreme Court’s ruling on Dobbs v. Jackson Women’s Health Organization which upheld Roe V. Wade’s constitutional right to abort. In the aftermmath, states across the country can implement previous unconstitutional laws restrict access to abortion, implement trigger laws (statutes that are designed to restrict abortions in the event that Roe the case of Roe. Wade be overturned) or pass law changes that significantly restrict or ban altogether abortion. At present, nine states have stopped elective abortions, with other states in the process of implementing similar laws.
In addition, some states have continued to defend abortion rights, while some have expressed that they intend to increase the protections offered by these states. In addition the Biden administration has issued an executive order directing that the U.S. Department of Health and Human Services to increase the availability of medical abortion pills and to encourage more rigorous enforcement of the birth control protections as part of the Affordable Care Act (ACA). In some states where legislatures of the state have tried to limit abortions, state supreme courts have resisted the legislative initiatives in accordance with state law.
Thus, companies that work across state lines or employ employees working remotely in states that have stricter abortion laws face a variety of uniform and rapidly changing laws regarding whether abortion is legal. This is a major issue for employers looking at options to support employees who decide to seek an abortion. Many of these employers have implemented benefits for employees which cover the costs of travel and lodging from states that prohibit abortions to those states that allow it.
Employer Options for Providing Abortion-Related Travel Benefits Post Dobbs
Certain employers are responding at Dobbs with a plan to cover the costs of lodging and travel for employees to other states in order to get an abortion.
Employers should be aware that any policy or program that provides reimbursements or payments are given for abortion-related travel benefits is usually regarded as an employer-sponsored group health insurance plan, subject to various federal laws,
including the Employee Retirement Income Security Act (ERISA) and the Health Insurance Portability and Accountability Act’s (HIPAA’s) privacy regulations. To ensure compliance with the laws, employers must think about incorporating abortion-related travel benefits as a part of their traditional health insurance plan (which most likely will already be in conformity).
An alternative is to offer travel benefits related to abortion as an option in one of the “excepted benefit” health care flexible spending account or a health reimbursement arrangement (HRA) as well as an employee aid program (EAP). Employers could opt to avoid certain federal laws that pertain to health insurance plans for group employees by providing reimbursements to travel outside of one’s state without requiring or asking regarding the reason behind the trip.
All of these choices are described in greater in detail below. There are pros and cons for each method Employers should think about the various options carefully prior to deciding on one.
Leave Considerations. Employers who offer travel benefits to employees to access abortion treatment must also think about how to manage the time employees take off to avail these benefits.
The Family and Medical Leave Act which applies to companies that have at fifty employees must provide employers with at least 12 weeks unpaid time off annually for serious health issues that the employee is suffering from because of pregnancy. Employers are also required to check their local and state leave laws, aswell the internal sick leave policies.
Different anti-discrimination laws are pertinent. Title VII requires employers to provide pregnancy-related leaves if they offer leave for urgent family obligations or illness. Additionally the Equal Employment Opportunity Commission (EEOC) has warned that, pursuant to the Pregnancy Discrimination Act, “an employer must permit women who have physical limitations due to pregnancy to leave under the same conditions and conditions as other employees who have similar capability or inability.
According to the Americans with Disabilities Act, pregnancy is not an individual covered disability that is entitled to reasonable accommodations like time off. Instead, these rights only come into play if the worker has a medical issue related to pregnancy. Employers should still look into their state’s anti-discrimination laws, which may provide reasonable accommodations for pregnant employees in general.
In its turn For its part, it is the Biden administration has decreed that federal employees take advantage of their paid sick days to get an abortions outside of the state.
Broadly Available Travel Reimbursements. The numerous administrative complications. That arise under ERISA. ACA, HIPAA and COBR. A could be avoided with the availability of a broad reimbursement for travel. The benefit will be accessible for travel outside of the state and not limited to travel for abortions. Other medical reasons. Of course. This benefit can be expensive since employees can use the benefit for reasons other beyond medical reasons related to abortion.
Employers who want to establish such a program must not solicit or gather information regarding the purpose of the trip. To minimize the cost reimbursements, the reimbursements can be limit to a specific annual amount. Any reimbursements made for this purpose will be tax-deductible to the employee. ERISA will have no effect on a widely offered travel benefit. Consequently any potential protection due in part to ERISA preemption (see below) is not applicable in the same way. It is important to be cautious. When the creation of a broadly accessible travel benefit in order to avoid.
The triggering of “constructive receipt” of taxable income. That is equal to the amount an employee could have chosen to receive. However did not receive. To prevent constructive receipt. The payments are only payable to reimburse legitimate travel-related expenses. (and not for an employee that simply must request the amount). The expense of travel should be document by receipts for travel expenses. However employers should not request that employees provide any explanation for the trip.
