On June 24, 2022, the U.S. Supreme Court overturned Roe v. Wade, taking the position that there is no constitutional right to abortion and returning governing power on this issue to the states. This decision set off a dizzying array of legislation across the country, leaving Americans with questions about abortion access.
As an employer, it’s essential to understand the law and how to remain compliant while supporting your employees. Below are lawful ways to provide resources to employees seeking access to abortion.
Employee Assistant Programs (EAPs)
An Employee Assistance Program (EAP) is an employer-sponsored benefit program designed to offer employees (and their family members) financial resources to address personal struggles. EAPs are voluntary, which means that employers who provide this program choose to do so in order to support employees who are facing challenges. Implementing EAPs may be a valuable method employers can utilize to aid employees, but if you decide to take this route, there are some important things to keep in mind.
- provide “significant benefits” for medical care,
- be coordinated with benefits under another group health plan,
- charge a premium for participation, or
- require any cost sharing.
This is where things get a little hairy: because EAPs can’t provide significant benefits for medical care, they can’t be used to fund an abortion procedure or a medical abortion. However, it’s possible that they may be used to fund travel and/or lodging that is necessary to seek this medical care. EAPs may also provide counseling in certain circumstances.
To understand how to set up an EAP and to ensure it remains compliant see this post.
Expand PTO and sick policies
Extending paid leave is a remarkably simple, yet effective, way to support employees. Consider the situation of an employee who must travel to another state to seek medical care; this will likely require time away from work and—when factoring in recovery—that time may be significant. As of August 2022, the Department of Labor has not clarified whether the Family Medical Leave Act (FMLA) will cover leave for abortion, so offering employees paid time off could be a valuable way to support them.
Another pro: expanding PTO makes any issues around confidentiality irrelevant. Later on in this article, you’ll read about ways to support employees that require documentation or receipts—by offering PTO, you eliminate any of those needs and reduce your exposure to confidential information. (Bonus: this method is sensitive to employees who don’t wish to disclose any information about their care, affording them more privacy.)
Last, even if your state governing bodies pass aiding and abetting laws, employers who offer expanded PTO won’t take on any liability risk. (Keep in mind: risk will be low in general; see details by scrolling down to: Is supporting access to abortion risky?)
Cover costs directly
Employers who are interested may choose to cover employee abortion costs. Abortion procedure and pill costs vary significantly across regions throughout the U.S., and depend on the type of clinic, but a study out of the University of California San Francisco found that the median cost for:
- The abortion pill is $560
- An abortion procedure within the first trimester is $575
- An abortion procedure within the second trimester is $895
Set up a broad reimbursement arrangement
Employers may implement a broad reimbursement arrangement for employees; the key to remaining compliant is to ensure that:
a) the funds are taxable, and
b) the arrangement is not specifically tied to medical care–it technically can’t be specifically tied to any expenses listed by the IRS in the Section 213 publication.
For example, you can structure the arrangement so that it:
- funds any travel or lodging expenses (ensuring that the travel/lodging is not tied specifically to medical care–general travel/lodging coverage includes abortion-related travel/lodging without being specifically tied to this particular care),
- or you can structure the arrangement slightly less broadly so that it funds any travel and lodging expenses that are related to “wellness.”
If this arrangement becomes tied to medical care it can accidentally become a group health plan benefit, like a Health Reimbursement Arrangement (HRA), and then will be subject to either the state laws or the federal laws that govern these.
While this type of broad arrangement may be more costly to an employer than a medical reimbursement arrangement (which we’ll get into below), there is more flexibility. This option also may come with less exposure to confidential information. (However, if you do require that your employees provide documentation or receipts to be reimbursed, these records are not covered under the Health Insurance Portability and Accountability Act (HIPAA). This means it’s up to you, the employer, to create and implement a system to ensure the confidentiality of your employee.)
Contract directly with an abortion provider
Some companies are exploring the option of contracting directly with abortion providers.
Let’s back up: a company can reach out to a healthcare provider (like a specific hospital, a certain physician, a clinic, or any healthcare institution) and create an agreement. Direct contracting is efficient and flexible because this process operates outside of healthcare insurance carriers and provides your employees with care at a price you negotiate.
It may be possible for your organization to contract with an abortion clinic (or with a larger organization like Planned Parenthood). Once the contract is in place, inform your employees that this service is available, and the healthcare provider can bill your company directly.
Benefits of going this route: this may be more cost-effective than offering a broader benefit or policy, and may better protect employee privacy (the healthcare institution may not have to disclose the name of the employee). On the other hand, for those who live in states where abortion is banned, the time off, travel, and lodging challenges persist.
We cover how to use health benefits in order to support abortions in detail in this post, but we’ll walk you through the basics here.
Health plan designs
First, it’s important to note that illegal abortions are never covered by insurance (an illegal abortion is one that occurs outside the state-dictated time frame or in a banned state). While certain health insurance plans may be designed to cover legal abortions, this gets complicated.
Most small to midsize employers offer fully-insured group health plans; these are subject to state law, and so if abortions are banned in a certain state, it’s unlikely fully-insured health plans within that state will cover out-of-state abortions.
Some employers offer self-insured plans, which have more flexibility and are subject to federal guidelines rather than state law. However, even if abortion is covered, an out-of-state procedure may be considered out of network and therefore, not covered or only partially covered.
Medical reimbursement plans to support abortion access
Tax-free medical reimbursement plans like Flexible Spending Accounts (FSAs), Health Savings Accounts (HSAs), and HRAs don’t adhere to state law; these typically follow federal guidelines implemented by the IRS. According to the IRS abortion is medical care, and therefore, is eligible for medical reimbursement through one of these tax free-funds. In addition, portions of travel and lodging expenses (as long as the travel/lodging is directly related to the abortion care) may be covered.
For a complete understanding of how these tax-free funds can be used to support abortion access, see this.
Health insurance riders may be purchased as a supplemental benefit to a health care plan in order to cover services that aren’t included in the health plan design. Purchasing an abortion rider as an add-on to your health plan may be something you consider as an employer. (Go to this post for details on abortion riders.)
Don’t forget to check out the comprehensive post on Abortions and health insurance here for a deep dive.
Other ways to assist
If none of the options you’ve just read through seem feasible to you, you may want to consider these:
- Offer a relocation benefit to employees who wish to live in a state that is less restrictive
- Create a relief fund
- Offer one-time bonus payments
If you’re committed to providing support, you can get creative about ways to help your team.
Are fertility procedures at risk?
As of August 2022, no.
Employers who offer fertility benefits may want to stay abreast of any legislation on how the overturn of Roe v. Wade may affect in vitro fertilization (IVF) fertility treatments in your state.
In an IVF treatment, embryos are created in a lab, and depending on how state law is interpreted and implemented in the wake of the Supreme Court Roe v. Wade decision, these embryos may be subject to certain protections and/or restrictions.
South Carolina and Alabama have included language to specifically exempt IVF from their abortion bans, safeguarding fertility treatments within those states. No other state has made clear exemptions; on the other hand, no state has made explicit statements or taken actions to interfere with fertility practices either.
Is supporting access to abortion risky?
From a legal perspective, risks are low. As of August 2022, Texas and Oklahoma are the only two states that have aiding and abetting laws. How these work is a little confusing, but we’ll break it down:
It is not illegal for a Texan or an Oklahoman to get an abortion out of state or to help someone get an abortion out of state; neither of these acts is currently criminalized. State law (in both states) does allow civil suits (not criminal suits), so for example, if:
- Texan A wishes to seek an abortion, and
- Texan B helps Texan A find and receive that care out of state,
- then Texan C can sue Texan B for aiding and abetting abortion.
- Texan A (who received the abortion) cannot be sued.
The same situation can be applied to Oklahomans.
(Please keep in mind these laws and the landscape is subject to change. As changes are made, we’ll keep you updated.)
Those that are concerned that supporting abortion-seeking employees may lead to reputation tarnish or backlash should know that a recent Gallup poll found that 55 percent of Americans consider themselves pro-choice (which is the highest it’s been since 1995) and 5 percent are unsure. Meanwhile, 52 percent say that abortion is morally acceptable and 10 percent say it depends on the circumstance or are unsure.
Employers looking to explore ways to support abortion access should know they aren’t alone. A number of companies across the country have made their support for abortion-seeking employees public and are openly implementing ways to assist.