Employer-Paid Journey Help for Interstate Abortion Entry | Lowenstein Sandler LLP

Final week, the U.S. Supreme Courtroom formally overturned Roe v. Wade in its consequential resolution, Dobbs v. Jackson Girls’s Well being Group. With federal safety for abortion now dissolved, many employers are contemplating how they will help their workers who dwell in states the place entry to abortion shouldn’t be out there. Ideas have shortly turned to offering help to allow these workers to journey to a state the place abortion is authorized. Questions that come up embrace whether or not offering journey help for such function is permissible, how journey help could also be offered, whether or not and to what extent journey reimbursements are taxable, and the way such a profit could be offered whereas addressing an worker’s considerations about privateness.

Whereas the authorized query of whether or not states will probably be permitted to impose “journey bans” as a restriction stays unanswered, within the meantime quite a few states have seen a rise in nonresidents crossing state traces to entry the process. For instance, after Texas banned virtually all abortions six weeks after conception, Deliberate Parenthood reported that its clinics in neighboring states noticed an virtually 800 p.c enhance in abortion sufferers.

Recognizing that touring for an abortion shouldn’t be financially or logistically attainable for everybody, a number of giant employers, together with Starbucks, Tesla, JPMorgan Chase, Meta, Dick’s Sporting Items, Condé Nast, and others, have introduced plans to implement insurance policies to cowl journey bills for workers who should journey out of state to entry these well being companies. Lyft and Uber, along with increasing the corporate’s insurance coverage protection to incorporate “a variety of reproductive well being advantages, together with being pregnant termination,” additionally pledged to reimburse their drivers’ authorized bills if a driver is sued below state legislation for offering transportation to a clinic. The checklist of employers saying plans to offer journey help and different advantages to assist workers in restrictive states grows day by day.

The map under exhibits in crimson the states that presently have full or partial bans on abortion.

An employer all for offering abortion-related journey help to workers ought to take into account the next points.

Is it permissible to offer abortion-related journey help?

There are experiences of some states contemplating bans on interstate journey for an abortion, however as of this writing, there don’t look like any state legal guidelines that accomplish that. Some experiences have raised the prospect of a state asserting “aiding and abetting” felony legal guidelines to punish employers that pay the journey prices of staff crossing state traces to entry an abortion process. For a wide range of causes, that risk appears distant, however it is a growing authorized surroundings that can require monitoring.

Studies additionally recommend that some states are contemplating prohibiting well being plans from overlaying abortion-related companies. The Worker Retirement Revenue Safety Act of 1974 (ERISA), the federal legislation that governs worker profit plans, usually preempts state legal guidelines to the extent the state legislation “pertains to” an worker profit plan. A majority of huge employers have self-insured well being plans, which (not like insured well being plans) take pleasure in the advantages of ERISA preemption. Thus, to the extent {that a} state legislation purports to limit a self-insured well being plan from overlaying abortion-related companies, such legislation could also be preempted by ERISA. Authorized challenges to state legal guidelines prohibiting journey to acquire an abortion are all however sure.

How might an employer present abortion-related journey help?

An employer’s group well being plan is prone to cowl sure transportation-related bills for medical care (together with an abortion) no matter whether or not the protection is offered below a completely insured plan or a self-insured plan. Nevertheless, plans could be anticipated to have limitations on such protection. Whereas quantities paid below a bunch well being plan for a “authorized abortion” are excludible from revenue below the Inner Income Code (IRC) as medical care bills, such quantities are topic to limits that probably is not going to cowl the total value of interstate journey and lodging. For instance, the exclusion for lodging away from residence for the remedy of medical care is capped at $50 per evening per particular person.

Given these limits, employers that keep self-insured well being plans may take into account growing the reimbursement for abortion-related transportation below the plan. Employers which have absolutely insured well being plans might take into account establishing a supplemental reimbursement coverage. Nevertheless, advantages paid below a self-insured plan or a supplemental reimbursement coverage in extra of IRC limits will probably be handled as taxable revenue to the worker. An employer might take into account grossing up the reimbursement to cowl the worker’s taxes as properly.

Care needs to be taken in establishing a supplemental reimbursement coverage, nevertheless, as a result of the complement is likely to be thought of a separate group well being plan that’s topic to the necessities of ERISA, the Reasonably priced Care Act (ACA), and different legal guidelines to which group well being plans are topic. Amongst different issues, the ACA usually precludes a bunch well being plan from imposing annual and lifelong limits on profit coverages. Employers establishing supplemental travel-assistance preparations ought to take into account avoiding such limits within the occasion the association is taken into account a separate group well being plan. In consequence, employers ought to search the recommendation of counsel in drafting and implementing a supplemental journey help plan or coverage.

Employers that present well being protection by means of knowledgeable employer group (PEO) ought to coordinate any supplemental journey reimbursement with the protection offered by the PEO.

How can an employer shield its workers’ privateness when offering abortion advantages?

Effectively-meaning employers want to contemplate that workers could also be hesitant to tell their employer that they want an abortion due to privateness considerations. Staff’ privateness might be jeopardized, relying on how these journey reimbursements are included into current well being plans. Whereas corporations might attempt to set a predetermined stipend for abortion journey, there is no such thing as a assure that this profit could be considered individually from a well being plan, since abortion is taken into account medical care.

Moreover, privateness protections offered by the Well being Insurance coverage Portability and Accountability Act wouldn’t apply to information collected outdoors a bunch well being plan for abortion journey. For instance, abortion suppliers might disclose well being details about the process(s) offered to an worker with a purpose to invoice and acquire cost from the employer’s well being plan. This will deter many workers from electing to make use of these advantages out of worry that their employer or others on the firm will discover out about their want for an abortion. The federal Being pregnant Discrimination Act, Individuals with Disabilities Act, and Household and Medical Depart Act of 1993, in addition to some state legal guidelines, might shield staff extra broadly from discrimination or retaliation by their employer with regard to accessing an abortion. As of 2019, New York state legislation expressly prohibits employers from discriminating in opposition to their workers based mostly upon their sexual and reproductive well being selections.

The easiest way an employer can shield an worker’s privateness is to make use of a third-party service to rearrange for abortion procedures. For instance, it’s reported that the corporate Match has established a fund that instantly pays into Deliberate Parenthood for all journey and lodging associated to an abortion process. Dealing with this profit by means of a 3rd occasion or a third-party administrator helps guarantee the worker’s privateness.

Should an employer that dietary supplements abortion-related transportation prices additionally reimburse related prices for different medical procedures?

Employers that reimburse workers for interstate journey for abortion-related companies ought to take into account whether or not to additionally cowl interstate journey prices for different medical remedies. In fact, the distinction between most different well being companies and abortion companies is that the previous probably can be found within the state the place the worker resides. Nevertheless, there could also be procedures (reminiscent of gender transitioning companies) that aren’t out there in a state or that turn out to be unavailable sooner or later.