How employers can protect workers from several post-Roe legal risks

– Proactive planning. More than 100 employers have pledged to protect their employees’ access to abortions following the Supreme Court’s overturn of Roe v. Wade. While the abortion benefit offerings vary, most companies, like Citigroup, are covering expenses for workers who must travel out of state to receive abortion care.

But there’s a catch—antiabortion lawmakers have been vocal about their willingness to prosecute abortion seekers and individuals who assist them. For workers in states like Texas and Missouri, where abortions are restricted, employees who access abortion care could put themselves at legal risk.

While its commendable that more and more employers are expanding abortion policies for those seeking reproductive care, some key questions remain: How will leaders maintain employee confidentiality? Will workers have to disclose to HR that they’re seeking an abortion? And most importantly, how can employers protect workers in antiabortion states who want to make use of their abortion coverage?

In a piece published this morning, I spoke with several lawyers from the Chicago-based law firm McDermott Will & Emery, who shared insight on how they’re advising employers in the post-Roe era. Here’s an excerpt from my story.

At least eight states have fully banned abortion in the weeks following the Supreme Court’s overturn of Roe v. Wade. Many are expected to follow, as proposed bans make their way through the state courts.

As employers grapple with what employee protections to offer individuals seeking abortion care, several legal risks have emerged that could place companies in a political and financial crossfire.

States like Texas and Missouri have made clear they plan to punish those who “aid or abet” abortion seekers, which presents problems for companies that do business in such states. Their own employees could be their Achilles heel, leaking information to outsiders and helping prosecutors obtain information that could be used to bring charges against colleagues.

While the extent to which prosecutors will punish those who provide abortion assistance to patients is unclear, employers must be vigilant in protecting their employees’ health information. Prosecutors could subpoena companies, requesting the disclosure of medical information, and whistleblowers could leak protected health information or retaliate against employees who seek reproductive care.

“Any employer who doesn’t already have an assessment of what the end of Roe means for its operations and workforce…needs to get in front of this,” says David Gacioch, a partner at McDermott Will & Emery. The firm, which launched an interdisciplinary task force to advise employers on post-Roe legal risks, offers key suggestions for employers:

• Meet with the company’s legal counsel to determine how to respond to subpoenas. A company with limited operations in Texas, for instance, may choose to refute or ignore a subpoena from the state.
  
• Ensure that an insular group of individuals, primarily human resources personnel and legal professionals involved in the day-to-day administration of a company’s health plan, have access to protected health information. This limits the potential for data leaks.
  
• Be aware of legal precedents. Under the 1978 Pregnancy Discrimination Act, any employment decision based on pregnancy, childbirth, or related medical conditions is considered unlawful sex discrimination. The Equal Employment Opportunity Commission has also taken the explicit position that abortion is protected under Title VII.

Read the full article here.

Paige McGlauflin
paige.mcglauflin@fortune.com
@paidion

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ALSO IN THE HEADLINES

- Vax hesitations. The FDA authorized COVID-19 vaccines for children ages 6 months or older in June. But many parents are still holding off on vaccinating their young children. Forty-three percent of parents with children under the age of five say they will not get them vaccinated against COVID-19, according to a new study from the Kaiser Family Foundation. More than eight in 10 parents cited concerns over severe side effects and unknown side effects, though 27% said they would “wait and see” how the vaccine affects other young children before deciding. CNN

- Campaign barriers. Disney-owned streaming service Hulu is refusing to run ads featuring major platform issues for the Democratic party’s midterm campaigns—including abortion and gun control—angering party leadership. Digital providers like Hulu aren’t required to provide politicians equal access to the airwaves under the Communications Act of 1934. As such, Hulu has a policy banning ads that take a position on a “controversial issue,” even if the ads don’t use violent imagery. Several Democratic-affiliated organizations report submitting the same ad for Disney-owned television outlets, with the ad aired there. Washington Post

- Futile attempt. The May leak of the Supreme Court’s decision on Dobbs put the nail in the coffin for Chief Justice John Roberts’ efforts to preserve abortion rights. It’s unlikely he could have swayed his right-leaning colleagues, though he tried to lobby Justice Brett Kavanaugh to switch votes. The ensuing investigation into the leak has only worsened strains between the justices, their law clerks, and other employees. CNN

- Expanding care. Democratic Rep. Cori Bush wants to set up a federal office to fund reproductive care. Bush, a former nurse, introduced legislation on Tuesday that would establish a reproductive care office with the Department of Health and Human Services and provide funding for doula care, food assistance, and sex education. While several reproductive care-focused bills have passed in the House since the overturn of Roe, all have failed to garner enough support to pass in the Senate. 19th*

MOVERS AND SHAKERS: Outgoing Whitbread CEO Alison Brittain is joining English Premier League as its new chair. Family building platform Future Family has appointed Amanda Devlin as vice president of enterprise. Generate Biomedicines has hired Alexandra Snyder as chief medical officer. Grace Zuncic, former chief people officer at Chobani, has joined Cotopaxi as its first chief people and impact officer. 

IN CASE YOU MISSED IT

- Court of Kylie’s opinion. Kylie Jenner is not a fan of Instagram’s rollout of Reels, a video service that highly resembles TikTok. On Monday, the reality star, who boasts the most followers of any woman on the app, shared a post from another user asking that the platform “stop trying to be like TikTok.” The last time Jenner critiqued a social media platform, tweeting that she no longer used Snapchat after its 2018 redesign, the app’s shares dropped 6%, accounting for a $1.3 billion loss. Fortune

- Victory for MTG. An Atlanta judge rejected an appeal by a group of voters challenging GOP Rep. Marjorie Taylor Greene’s eligibility for reelection. This is the third time the request to have Greene removed from the ballot for her proximity to the Jan. 6 Capitol riots has been denied. Associated Press

- Overlooked.  Thirty-three percent of Asian American and Pacific Islander voters are “more enthusiastic” about voting in the midterm elections, but most report that they've never been contacted by either of the two major parties, according to a study from nonprofit APIA Vote. Fifty-two percent of respondents said they’d never heard from the Democratic party, and 60% reported the same for the Republican party. Both parties have focused on attracting more BIPOC men, including Asian men, and the survey found a 9% gender gap in AAPI support for the GOP. Politico

ON MY RADAR

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Why Jessica Ramos went after AOC Intelligencer

In Meta's Are We There Yet, not even Keke Palmer can make the metaverse make sense Mashable

Why did we buy what Victoria’s Secret was selling? Atlantic

PARTING WORDS

“These have been the most horrible months of my life, and the lives of every Ukrainian. Frankly I don't think anyone is aware of how we have managed emotionally.”

-Ukraine's first lady Olena Zelenska, who was recently profiled for Vogue.