Many employers are Committed to Protecting Access to Abortion for their employees. Some have vowed to pay for the program’s travel costs. Meanwhile, pending abortion laws in states like Texas and Idaho are set to go into effect by the end of the month, making it difficult to deliver on those promises. Sarah Raaii, Co-Chair of the Interdisciplinary Post at McDermott Will & Emeryroe The team of more than 40 attorneys recently told MedCity News how the group will advise general counsels of companies seeking to protect employees’ abortion access.
MedCity News:: GCs Need to Know About Texas’ Upcoming Trigger Ban Law?
Ley: So there is a trigger ban that goes into effect a month later Dobbs Opinions are finalized.In addition to this, we saw 10 Texas lawmakers specifically threaten companies that come out and say they Travel benefits will be provided. The position of this group of legislators is that even if you are an employer, simply reimbursing your employees, or individuals living in Texas, to go to a state where abortion is legal, such as New Mexico, is itself a violation Existing Texas law. They also threatened to pass additional legislation specifically targeting employers who provide any type of travel benefit or travel reimbursement for reproductive health care. There does not appear to be a zero-risk way for employers to provide reproductive health benefits in these restrictive states, but there are certainly ways to try to mitigate that risk. For example, try to make sure you carefully craft any public claims about any type of reproductive health benefit you offer.
MedCity News: How can employers legally offer safe abortion as a benefit?
Ley: I think it’s important for employers to think about how these benefits are structured because there may be advantages to structuring reproductive health benefits in certain ways based on pending court cases and potential additional guidance we may have from the federal government. For example, offer them under an existing ERISA health plan rather than create another plan or a non-ERISA plan, as ERISA priority may prove to be a defense against at least some of the potential liabilities that employers may face. (Editor’s note: The Employee Retirement Income Security Act (ERISA) is a federal law that sets minimum standards and provides protection to individuals for most voluntary retirement and health plans in the private sector. In non-ERISA plans, employers Except for not participating in compliance actions.)
So there are at least some ways to protect companies that want to provide these benefits. That’s why it’s important to work with legal counsel to ensure that when companies are figuring out what’s good for their reproductive health, it’s well-engineered on the back end.
MedCity News: What would you say to the GCs of these companies? These companies have made these public statements that they will do everything to protect their employees’ rights to abortion?
Ley: “Companies are not necessarily at immediate risk by simply showing their support for reproductive health care and stating that they want to help employees access that care. However, some companies have raised concerns about abortion access and overthrow Roe v. Wade Have Raised negative attention from some restrictive state legislators. I think there is a right way and a wrong way to publicly advertise reproductive health benefits, so companies should work with knowledgeable advisors to carefully develop reproductive health benefits and any claims about them.
MedCity News: In terms of the changing landscape of abortion law, what would you most like to be legally clear about?
Ley: There seems to be some new development every week.Last week we saw a Kansas referendum Write abortion rights into the state constitution, and then we see Indiana pass a new State bans abortion, so it looks like states may continue to pass other laws before the trigger law goes into effect. One thing GCs and employers should do is to closely track any NSW developments in states where you have a business interest. Unfortunately, if you have employees all over the place, that can mean keeping track of 50 different state laws because it’s like “is this country banned for abortion,” with varying degrees of protection.
MedCity News: What privacy laws do GCs need to know about and the relationship between HIPAA and employers providing abortion services?
Ley: The other thing I think we’re looking at is any kind of federal guidance. recent, HHS issues reminder HIPAA’s guidance on when disclosure of protected health information is permitted but not required, which also applies to any protected health information related to access to abortion services. We’ve also been reminded by agencies that, despite what any state might try to do, the Affordable Care Act requires all health plans to cover birth control coverage with no cost-sharing, which has been the case since the Affordable Care Act was enacted. in this way. promulgated.
MedCity News: Regarding the information you’re waiting for GCs need to advise companies on suddenly changing laws, what’s next?
Ley: I know that employer industry groups have appealed to the federal government, the Department of Labor, HHS, and the Treasury Department to really get some guidance on how employers can provide abortion benefits, reproductive health benefits, and abortion travel benefits in some of these states without really risking civil and criminal penalties risks, so we hope to have more guidance there to help employers deliver these benefits more easily.
MedCity News: What are the consequences of a Biden administration suing Idaho last week to protect abortion access?
Ley: I don’t think it’s surprising that the Idaho lawsuit was brought by the Department of Justice, the first federal lawsuit in this battle. We would like to see more of the federal government really working to protect the rights of individuals to access services and the right of individuals to travel. Even at the outset, we told employers that it would be a long legal battle. I think the courts will hopefully help us determine what the boundaries of a lot of state laws are, because if you look at them, many of them are drafted, so they may not only be about abortion, but if states want to really interpret them broadly, they can extend to Fertility treatments, such as IVF, are increasingly being covered by employers in their health plans.
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