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Employers Seek Clarity on Reproductive Healthcare Benefits Litigation Following EEOC Commissioner Filing

Following the US Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, many employers extended travel benefits to women residing in states where abortion or reproductive health procedures may now be unlawful. Recently, US Equal Employment Opportunity Commission (EEOC) Commissioner Andrea Lucas filed a Commissioner’s Charge against at least three companies alleging that doing so violates Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act of 1990 (ADA). Although these charges are not public, it’s believed they mirror a letter that Sharon Fast Gustafson, the former EEOC General Counsel, recently sent en masse to employers around the country also alleging such travel programs violate federal anti-discrimination laws. The EEOC has since issued a statement that Gustafson’s views are her own and do not necessarily reflect those of the EEOC.

When Title VII was amended in 1978 by the Pregnancy Act amendments, language was added requiring pregnancy, childbirth and related medical conditions be treated equally with other medical conductions under an employer’s “fringe benefit programs.” Lucas asserts that providing travel benefits for those seeking abortions provides preferential treatment to women, thus constituting gender discrimination. Her contention is also that travel benefits further implicate religious discrimination by favoring those who terminate pregnancies over those who, for religious reasons, carry a child to term. Her final contention is that the provision of travel benefits violates the ADA, which she claims requires parity of benefits for those with physical disabilities.

Employers are now asking whether Lucas’ and Gustafson’s position may be the beginning of litigation by the EEOC or private plaintiffs and whether they can take measures to address the legal arguments being raised.

First, it is doubtful the EEOC will be suing. While Title VII and the ADA authorize a single commissioner to file a Commissioner’s Charge, that Charge will be investigated like any other Charge of Discrimination. If cause is found, EEOC procedure requires in cases garnering public attention (which this most certainly is) that litigation may only be commenced if a majority of the Commissioners (minus the Commissioner who brought the Charge) vote in favor of doing so. In the absence of a quorum, then only the General Counsel of the EEOC may initiate suit. At this time, Lucas would not appear to have such votes.

Second, employers can and should draft around these contentions to prepare for private suits. Specifically, such travel benefits should cover not only abortion and/or reproductive health, but also all covered services or procedures that are unavailable within a covered individual’s state of residence or area, regardless of the individual’s gender, pregnancy or childbirth status, or disability status. This would make the benefits “available” to everyone.

Finally, there is a suggestion that, even with such drafting, this travel benefit will still be utilized primarily by non-Christian women, thus supporting a disparate impact claim based on religious discrimination. This is an overreach. Title VII claims require an adverse employment action such as an employee who requests but is denied a travel benefit due [...]

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Legal Risks Loom For Employers Protecting Abortion Access

US employers are taking steps to provide abortion access to workers despite threats from anti-abortion activists and conservative lawmakers. In this Law360 article, McDermott’s Sarah Raaii said that “we’re certainly continuing to monitor” threats against employers.

“And we’re now in the position — really an unprecedented position for employers — of having to potentially look at 50 different states’ very specifically written laws regarding reproductive health care,” Raaii said. “Some states require some type of coverage, some states prohibit it. So it’s become a lot more burdensome for employers.”

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How Employers, Insurers Are Coping with Abortion After Dobbs

The US Supreme Court’s ruling overturning Roe v. Wade has created more complexity to the country’s patchwork of abortion laws. In this Managed Healthcare Executive article, McDermott’s Sarah Raaii offers perspective about how insurers are navigating healthcare plans state-by-state.

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How the Overturning of Roe v. Wade May Affect US Employer Benefits Plans

The US Supreme Court’s decision to overturn Roe v. Wade has led to a flurry of confusion and questions from employers. In this Benefits Canada article, McDermott’s Sarah Raaii explains how some states are imposing criminal penalties for anyone who assists with abortion within their borders.

“If a court determines state abortion restrictions are generally applicable criminal laws, then potentially, ERISA (Employee Retirement Income Security Act) plans can be subject to criminal penalties if they provide abortion services, including travel benefits,” Raaii said.

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Texas Abortion-related Litigation ‘just getting started’

It was a busy end of August for abortion-related litigation in Texas. Multiple pro-reproductive justice nonprofit groups sued Texas Attorney General Ken Paxton and other prosecutors to protect the ability of pregnant Texans to obtain abortions in outside states, and Texas’ new trigger ban law went into effect. In this MedCity News article, McDermott Partner Caroline Reignley notes how the US Supreme Court’s landmark Dobbs decision “did not end the debate over abortion or limit court intervention.”

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Want to Provide Abortion Travel Benefits at Your Company? Here’s How to Protect Employees

How can companies provide abortion travel benefits to their workers without disclosing sensitive medical information? In this Corporate Counsel article, McDermott’s Sarah Raaii provides insight into how the Health Insurance Portability and Accountability Act (HIPAA) and the Employee Retirement Income Security Act (ERISA) offer protections for workers seeking reproductive healthcare services.

“The most common way that we’ve seen employers offering these abortion benefits is to include them in their existing ERISA health plans, in which case they [the plans] would be subject to HIPAA,” Raaii said.

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What Should GCs Know About the Abortion Landscape?

What should company general counsels (GCs) know about abortion trigger bans, the Health Insurance Portability and Accountability Act (HIPAA) and how not to break the law in light of the new abortion landscape in the United States? In this MedCity News article, McDermott’s Sarah Raaii offers insight into how companies can protect abortion access for workers.

“One thing that GCs and employers should do is closely track any new state developments in a state you have business interests in,” Raaii said. “And if you have employees all over, unfortunately that could mean keeping track of 50 different states laws because it’s as simple as ‘this state does or doesn’t prohibit abortion,’ there’s different levels of protection.”

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How Can Employers Protect Workers Who Seek Abortion Care?

As US states seek to reduce abortion access in the wake of the overturning of Roe v. Wade, how can employers protect workers who seek abortion care? In this Fortune article, McDermott’s David Gacioch, Sarah Raaii and Ellen Bronchetti offer insight into what the US Supreme Court’s decision means for employee healthcare data, employee benefits and Title VII.

“Any employer who doesn’t already have an assessment of what the end of Roe means for its operations and workforce…needs to get in front of this,” Gacioch said.

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Navigating Data Privacy Questions Post-Dobbs

The US Supreme Court’s recent decision to overturn Roe v. Wade in Dobbs v. Jackson Women’s Health Organization has raised many questions about potential efforts by law enforcement agencies to obtain data from healthcare and other service providers to detect the performance of a possibly unlawful abortion. For example, data collected by period-tracking apps, patients’ self-reported symptoms, or diagnostic-testing results might be used to establish the timeframe in which an individual became pregnant, and then demonstrate that a pregnancy was terminated, as part of investigative or enforcement efforts against individuals or organizations allegedly involved in such termination.

On June 29, 2022, the office within the US Department of Health and Human Services (HHS) that is responsible for enforcing the Health Insurance Portability and Accountability Act (HIPAA), the Office for Civil Rights (OCR), issued guidance addressing how HIPAA limits disclosures by covered entities and business associates to law enforcement agencies in the absence of a court order or other legal mandate. The guidance provides helpful insight on how OCR may use HIPAA enforcement to discourage unauthorized disclosures of protected health information (PHI) to law enforcement officials in the wake of new state laws outlawing abortion. The guidance also implicitly confirms, however, that HIPAA does not provide a complete shield against law enforcement and litigation-driven requests for abortion-related information.

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