Legal Considerations For Employers Offering Abortion Access As A Benefit

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Legal Considerations For Employers Offering Abortion Access As A Benefit





AllVoices CEO Claire Schmidt said she’s always kept issues about inclusivity and equity top of mind when considering the company’s policies and benefits, especially because its workforce is remote and her startup’s business is an employee feedback management platform.

But it was the leak of the U.S. Supreme Court’s draft opinion to overturn Roe v. Wade that spurred her to think specifically about abortion access for her employees.

“When the opinion leaked, I started to think, ‘Is there more we can do?’” Schmidt said.

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Schmidt talked to friends who were also startup founders to get a sense of what other companies are doing to support employees. When the court ruling landed last Friday, she focused on making sure AllVoices’ employees weren’t “feeling in limbo or stressed.”

Companies, especially those with remote workforces, are grappling with how to best support employees in light of the new restrictions on abortion in states including Texas, Arkansas and Missouri. 

Large companies from JP Morgan to Netflix have said they’ll cover employees’ travel to other states for abortion, a policy some startups are considering as well. But it’s uncharted terrain that presents numerous legal and privacy challenges for companies that choose to take that stance.

AllVoices is offering a relocation stipend for employees who want to move to a different state or take time off to protest or seek medical care through the company’s unlimited paid time off policy. It will also offer travel stipends for employees who need to go out of state for an abortion. And the company ensured that its health insurance provider would still cover abortions, along with mental health care and counseling.

In a time when so much is unknown, companies need to provide clarity around what they’ll do to support employees, Schmidt said.

“I think what they’re really looking for is, ‘What is my company going to do to support me in case I’m in a situation where I need help and support? Potentially my life is in danger,’ ” Schmidt said. 

Employee privacy concerns

Companies that want to ensure abortion access for their workers face numerous legal and privacy challenges.

Schmidt said privacy concerns are the biggest issue she has heard other startup founders discuss when it comes to employee abortion access. 

It’s a sensitive subject. Although an employer may be willing to cover the cost of out-of-state travel for an abortion, some employees may not be comfortable submitting the expense to their manager for approval.

Two ways startups are considering to protect privacy are by either providing a blanket medical travel reimbursement stipend that can be used for anything health related, or by designating just one or two people in the finance department to handle those reimbursements. All in a bid to maintain as much confidentiality as possible, Schmidt said. 

What’s smart about designating one person to process the reimbursement is that only one person needs to know about the situation, Schmidt said, while the blanket reimbursement policy is beneficial because nobody needs to know what it’s for.

After originally speaking with Crunchbase News, AllVoices received word from its insurance provider, Blue Shield of California, that employees could receive travel reimbursement for an abortion through the insurer, rather than Schmidt’s company. She said she needs to look into that option further, but it holds potential and is a direction the company is leaning toward.

Helping employees who live in states that ban or restrict abortion obtain that medical care comes with a slew of privacy and legal challenges, according to Bethany Corbin, senior counsel at Nixon Gwilt Law. 

“From the risk perspective on the legal side, the main one I’m seeing there is privacy and security,” Corbin said. “How do you structure this type of benefit so employees feel comfortable requesting it without giving too much of their health information away?”

Many employers are now looking at ways to build the benefit into their employer-sponsored health plans. Doing it that way creates something of a barrier that separates health data from the employer, Corbin said. 

Employers also need to keep in mind that if they’re offering to cover the costs of an employee’s travel for an abortion, the issue of discrimination could come up, according to Ellen Bronchetti, a partner at McDermott Will & Emery’s employment law practice. Employers considering offering a broad policy to cover travel for health care need to think about what other services would be encompassed in that policy, she said.

“If you offer the benefit only to those women who are seeking the procedure, there’s the question of if this impacts other populations of employees or discriminates against other medical conditions, which could violate anti-discrimination laws,” Bronchetti said.

‘Aiding and abetting’ laws

Companies that have employees in states such as Texas that have aiding and abetting laws—which can implicate people who assist others to commit what’s considered a crime in those states—are in an especially tricky position.

Companies that operate in those states need to figure out what could be considered “aiding and abetting” abortion, especially as many of these issues will take time for the courts to sort through. “Companies have to be prepared that even those innocuous looking benefits could be used to say they aided and betted abortion,” Corbin said.

One thing companies often overlook as well is that not all of their employees may be pro-choice, Corbin noted. If a company covers the cost of an employee traveling for an abortion and that information isn’t secure, someone within the company could flag it as aiding and abetting.

“It’s a very, very tricky terrain—a slippery terrain—right now,” Corbin said.

Illustration: Dom Guzman


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