Three years after the Supreme Court overturned the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization, employer benefits related to the procedure are broadly popular, according to a new report.
But offering benefits such as travel reimbursements for abortion can carry certain privacy-related and legal risks if not designed properly, warns Reproductive and Maternal Health (RMH) Compass, the organization that published the report.
Some 92% of employers surveyed by RMH Compass cover elective abortions through their medical plan, while 85% reimburse travel for employees that need to go out of state to seek the procedure.
Among companies that reimburse travel expenses related to abortion, though, just 22% use a third-party platform—such as an employer-sponsored health plan—to administer the benefit, the survey found. Should HR teams administer such a benefit themselves, it could put their companies at risk of violating the law, said Flory Wilson, RMH Compass CEO and co-founder.
A popular benefit with potential risks. Large employers, including JPMorgan, Sony, and Estée Lauder, announced they would offer an abortion-related travel reimbursement shortly after the Supreme Court overturned Roe, but such moves quickly drew scrutiny from anti-abortion lawmakers. Members of the Texas legislature, for instance, threatened to prevent companies like Lyft from doing business in the state for offering such a benefit.
The quickly-shifting legal environment around abortion was likely to “impact the decision-making for some employers due to the amount of uncertainty in the law and the potential criminal consequences for violating the law,” Katy Johnson, former senior counsel of health policy and current president at the American Benefits Council, told HR Brew at the time.
When speaking with employers, it appears some instituted a travel reimbursement benefit for abortion in haste without putting a ton of thought into how it would be administered, or considering implications for employee trust, Wilson said. If the company itself is handling the benefit, HR pros will often tell RMH Compass no one has reached out to use it.
Quick-to-read HR news & insights
From recruiting and retention to company culture and the latest in HR tech, HR Brew delivers up-to-date industry news and tips to help HR pros stay nimble in today’s fast-changing business environment.
“That is probably because no one wants to tell their HR team, ‘Hey, I need an abortion,’” Wilson explained. Disclosing such information poses risks for both workers and employers, she added, as a number of states have passed laws seeking to punish individuals who “aid and abet” abortion care.
How HR should handle abortion-related benefits. Ideally, HR shouldn’t receive any identifiable information about a worker when they decide to use an abortion-related travel benefit, Wilson said, “They’ll get information that someone used the benefit, but nothing that is identifiable, and that’s what's so critically important from a health data privacy perspective.”
As long as employers with self-funded health plans offer an abortion-related travel reimbursement through their health plan, they should evade legal risks, Wilson said. That’s because self-funded plans are subject to the Employee Retirement and Income Security Act (ERISA), which generally preempts state laws related to employee benefit plans.
Employers that offer fully insured health plans are in a tricker spot to offer this type of benefit, as these are subject to state laws.
To mitigate legal risks that could arise from offering an abortion-related travel benefit, RMH Compass recommends fully insured employers, operating in states with restrictive laws, try to do so through a specialty health reimbursement account. This allows employers to reimburse employees directly for certain types of care, and is integrated into a fully insured health plan. The benefits platform Forma announced a solution along these lines in July 2022 in the immediate aftermath of the Dobbs ruling.