DEI isn’t just a buzzword in the HR community. It’s a must have way of operating businesses. For some companies, this could even mean changing the healthcare services and benefits they offer employees – even for abortions.
No matter where you stand on the issue and how you treat controversial issues being discussed in the workplace, there’s no way you can avoid this topic right now if you’re a Benefits pro. The Supreme Court draft decision leak of the downfall of Roe v. Wade has seen to that. Regardless of the decisions you make when it comes to benefits, there are many variables to consider.
Legal implications of Roe v. Wade
Changing your healthcare coverage in these volatile times requires an in-depth review of legal implications. Legal experts at Morgan Lewis recommend employers:
- Review the scope of your state regulations with a fine-tooth comb. In fact, seek out legal counsel when doing this to find out what you can and can’t pay for via your healthcare benefits, and other options you have.
- Find out if the laws apply to services received out of state. Again, seeking legal counsel is highly advisable. In states that criminalize the procedure, they might also have laws stopping employers from “conspiring to violate criminal laws or aiding and abetting the commission of a crime.”
- Look at ERISA and what it covers, specifically section 514 (a), which “creates exclusive federal control over employee benefit plans by preempting all state laws that relate to any employee benefit plan.”
Things to consider
If you’re thinking about overhauling your own benefits package, here are things you’d need to provide to your workers regardless of gender:
- travel benefits open to any employees because it may be the employee’s girlfriend, sister or mother who needs help
- PTO (typically two to three days, but some employees could need as much as one week with travel and follow-up appointments)
- EAP/grief counseling, and
- PTO donation program.
Here’s what some companies have already done in response to the current landscape:
- Amazon employees now have a benefit that covers them for up to $4,000 in traveling out of state for health care whether it’s for reproductive care or other medical issues.
- In September it was announced that Apple’s medical insurance plan covered the costs of abortion treatment and any travel related to it.
- Citigroup health insurance plan will now cover the cost – airfare and accommodations included – for employees who need to travel to get an abortion. For years the company has offered travel benefits to access healthcare services, like transplants, bariatric surgery and orthopedic procedures outside its local area.
- HP Enterprise,headquartered in Texas, covers medical treatments, including abortions, provided outside the state.
- Tesla’s expanded its Safety Net program and health insurance benefits by helping provide travel and lodging for employees who get healthcare services outside their home state because they can’t receive them in it.
- Bumble, based in Texas, now has a fund that supports “the reproductive rights of women and people across the gender spectrum who seek abortions in Texas.”
- Levi Strauss’s benefits plan reimburses all employees – even part-time staff – for travel expenses when services aren’t available in their home states.
- Lyft & Uber created legal defense funds to protect their drivers who might get sued under Texas law for transporting anyone who gets an abortion.
- Match Group created a fund in September to guarantee all of their employees and their dependents can get reproductive care outside of Texas.
- Salesforce offered to help any employee move out of Texas.
- Yelp announced that while its health insurance already covered abortions, it’ll now cover travel expenses for any U.S. employee and their dependents to access such care.
In addition, a few major financial institutions, like JP Morgan Chase & Co., Goldman Sachs and Bank of America, are taking a look at their existing policies in the wake of all this.
Companies like Citigroup have even been threatened with the passing of legislation that would prohibit local governments from doing business with those that have these policies.
No matter what path employers choose, they must tread carefully through this legal quagmire.
Rocky road ahead
Currently, insurance coverage of abortion care is only required in six states. With the possibility of Roe v. Wade being overturned, the road is about to get a lot rockier with the likelihood that at least 22 states will ban abortions.
As it is, the Hyde Amendment bars the use of federal funds for abortions, except in cases of rape, incest or where a mother’s life is endangered. That includes Medicaid. But 16 states now use state funds to pay for abortions through Medicaid. And about half of the states have restrictions on insurance plan coverage of abortions via the Affordable Care Act. Finally, 11 states restrict coverage offered via private insurance plans.
However, these states can only control fully insured private plans. The rest – self-insured and self-funded plans – are regulated by the federal government under ERISA.
Bottom line: For many large employers, like the ones mentioned above, if they self-insure, they can set their own policies no matter where they’re located.