The US Departments of Health and Human Services, Labor and Treasury (the Departments) recently issued a proposed rule to eliminate a moral exemption to the Affordable Care Act (ACA) contraceptive mandate and establish an “individual contraceptive arrangement” to permit individuals to obtain contraceptive services at no cost in instances in which their employer does not offer coverage based on its religious beliefs. This is the latest development in the Biden administration’s efforts to increase reproductive health access after Dobbs v. Jackson Women’s Health Organization. The Departments previously issued a reminder to health plans and insurers that the ACA requires contraceptive coverage at no additional cost to individuals.
Respect for Marriage Act Would Protect Same-Sex Couples’ Company Benefits
The Respect for Marriage Act would preserve the company benefits of same-sex couples. The legislation, which passed the US Senate on November 29, was inspired by concerns that the US Supreme Court might reconsider its landmark same-sex marriage decision.
In this SHRM article, McDermott Partner Todd Solomon noted that federal and state law no longer distinguish between same-sex or opposite-sex marriages.
“Same-sex spouses must be extended spousal benefit coverage by employers” for fully insured health plans, Solomon said.
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.”
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.
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.
HIPAA Faces Test in New Abortion Reality
Doctors across the country are encountering a minefield of legal risks as they navigate a post-Roe reality. In this Axios article, McDermott Partner Scott Weinstein offers perspective on the Health Insurance Portability and Accountability Act (HIPAA) and health information disclosure.
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.”
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.
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.”
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.