Is it legal for companies to cover travel expenses of an employee's abortion?

Employment attorney explains the ramifications with Roe v. Wade likely being overturned

Is it legal for companies to cover travel expenses of an employee's abortion?

After increasing benefits and perks to include pet insurance and student loan assistance during the Great Resignation, now companies are offering something they never expected to.

Last week, a leaked Supreme Court draft ruling indicated that Roe v. Wade may soon be overturned after nearly 50 years. If reversed, more than half the country (26 states) would certainly or be likely to ban abortion, according to the Guttmacher Institute. While states like Michigan and Wisconsin have anti-abortion laws that predate Roe, 13 states, including Ohio, Arkansas and North Dakota, have laws that would go into effect soon after Roe is overruled, NBC News reported.

As a result, San Francisco-based companies like Yelp and Levi Strauss & Co., as well as Amazon, Citigroup and other firms have pledged to cover travel expenses for employees who must go outside their state for abortions. California companies like Apple and Salesforce have previously offered such benefits in response to Texas’ recent law banning all abortions after about six weeks of pregnancy.

Read more: ‘It’s scary’ if Roe v. Wade is overturned, says Women Corporate Directors CEO

Meanwhile, Lyft and Uber have said they would cover legal fees for drivers sued under the Texas or new Oklahoma law, which punishes people aiding the procedure, including doctors, people paying for the procedure and clinic workers. That includes rideshare drivers who could be fined up to $10,000.

Expect to see litigation involving these companies and states, especially as more states incorporate similar laws, says Meredith Kirshenbaum, a labor and employment attorney with Chicago-based law firm Goldberg Kohn.

A principal in the firm's litigation group and trained in employee benefits law, Kirshenbaum has experience litigating cases involving labor and employment law, commercial contract disputes, false claims act litigation and real estate disputes. She has represented employers in unfair labor practice charges and other matters pending before the National Labor Relations Board (NLRB), counseling employers during union organizing campaigns, defending employer interests throughout the union-election process and negotiating union contracts.

“There’s some risk that states where there are laws in place might try to penalize or punish businesses in other ways,” Kirshenbaum told HRD. For example, a Texas legislator has already warned Citigroup that he would introduce a bill to prevent the bank from underwriting municipal bonds in the state, unless it rescinded its policy covering travel expenses for employees who go outside their state to seek an abortion.

A similar situation has already happened in Florida with Gov. Ron DeSantis spearheading the effort to pass a law dissolving the Reedy Creek Improvement District, which provides The Walt Disney Co. authorization to govern its property as it sees fit, The Tallahassee Democrat reported. The legislation came on the heels of the Burbank, CA-based employer opposing Florida’s “Don’t Say Gay” law, which bans public school teachers from holding classroom instruction about sexual orientation or gender identity.

“Companies are making a decision and they’re weighing the risk,” Kirshenbaum says. “They’re sending a signal that they’re supportive of social issues their workforce believes in. There’s also a recruitment and retention element to it. They’re worried the progressive workforce might not want to continue to live in or move to a state with restrictive measures in place. That would affect companies’ ability to get top talent.”

Despite the goodwill gesture, Kirshenbaum isn’t sure how many employees will actually take their employer up on the offer. Considering abortion is such a sensitive and charged topic, employees may not be comfortable opening up about their personal life to that degree, even though the line between work and home has blurred since the pandemic.

“More than anything, this is a signal to employees,” Kirshenbaum says. “Employees increasingly want to work for companies that share their values.”

Last week, Politico obtained an initial draft majority opinion written by Justice Samuel Alito, which indicated the high court is ready to strip federal constitutional protections of abortion rights and overturn a subsequent 1992 decision — Planned Parenthood v. Casey — that maintained the right.

“We hold that Roe and Casey must be overruled,” Alito writes in the document, labeled as the “Opinion of the Court.” “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” the document states, according to Politico.

California has protected abortion rights by codifying them into state law, according to the Center for Reproductive Rights. Furthermore, California Gov. Gavin Newsom has said the state would propose an amendment enshrining “the right to choose” in its Constitution.

Learn more at Employment Law Masterclass California.

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