Companies have an easy and legal way to help their workers living in anti-abortion states – extend paid leave

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Elizabeth C. Tippett, University of Oregon

(THE CONVERSATION) Employers looking for ways to help their workers get abortions in states where it’s now or soon will be illegal don’t have an easy job.

From an employer’s perspective, abortion is considered a type of health care benefit – and the rules that apply to this benefit are changing rapidly from state to state. Abortion is also a political flashpoint guaranteed to produce controversy. And the problem is not going away anytime soon.

Some companies promise to cover out-of-state travel costs to get the procedure where it’s still legal. Others point out that their insurance plans explicitly cover abortions.

As an employment lawyer, I believe there is also a third option which may not be as generous but is less likely to run into legal problems – and will help more workers, especially those low income.


Direct payment of medical expenses

In 2020, the median cost of an abortion was US$500-600 in the first trimester and around US$900 in the second trimester.

Although most women seeking an abortion pay for the procedure out of pocket, some companies cover abortion in their health plans. In a recent statement, for example, Uber touted that its employee health plan includes abortion costs. And employers in a handful of states like California and New York are required to include abortion in any health plan they offer.

However, other states prohibit abortion health coverage under state insurance laws. Even before the recent Supreme Court ruling on abortion, 11 states, including North Dakota and Texas, had already banned or limited private insurance to pay for the procedure.

Companies that fund their own health benefit plan may be in a better position to avoid restrictions imposed by state insurance laws. But moving to a self-funded plan is unaffordable for most small or medium-sized businesses. And self-funding may not protect corporations if states decide to criminalize abortion.

In other words, companies don’t have much leeway when it comes to covering abortions in states determined to ban the procedure.

The travel expense option

Microsoft, Citigroup and at least 50 other U.S. companies have pledged in recent weeks to reimburse workers for travel costs associated with out-of-state medical care, including abortion.

Kroger and Dick’s Sporting Goods, for example, have offered employees up to $4,000 to cover such expenses, while Zillow said it will reimburse up to $7,500 when travel is necessary for an abortion or certain other medical procedures.

Still, I suspect many companies are hesitant to adopt similar policies. A survey in early June found that only 14% of companies already had a policy in place to reimburse abortion-related travel expenses, while a further 25% said they were considering one.

While those numbers may rise, major law firms have warned that such policies could create legal risks similar to those involved in covering healthcare costs.

Anti-abortion states could even outright ban travel reimbursement for out-of-state abortions. Texas lawmakers, for example, are already threatening to pass a law that “will bar companies from doing business in Texas if they pay for state residents to have abortions elsewhere.”

And while there’s reason to believe that interstate travel would be constitutionally protected, any resulting litigation would take years to resolve.

As a result, many companies may simply decide not to offer abortion travel benefits to workers in states where the procedure is prohibited.

A simpler solution that helps everyone

That doesn’t mean corporations are completely powerless to help workers in an anti-abortion state.

Workers who must travel hundreds of miles to obtain care unavailable in their condition will – at a minimum – need time off work. And while most workers have some access to paid time off, these benefits are mostly available to high earners. In contrast, about half of workers at the bottom of the wage scale do not have paid sick days or vacations.

These workers find themselves in an impossible position if they have to travel for an abortion. They are usually not even entitled to unpaid leave, unless they are covered by the Family and Medical Leave Act and their condition qualifies as a “serious medical condition”. Instead, they’re forced to cajole co-workers to cover their shifts and hope managers will cut them a break.

And every hour that a worker without vacation or sick leave spends traveling to another state for medical care is an hour that they don’t get paid. An employee earning $15 an hour who loses a week of work for an out-of-state abortion risks giving up as much money as the cost of the procedure itself. In other words, workers who can least afford to forego wages for an abortion are the most likely to be placed in this position.

If companies are unwilling or unable to pay for travel costs – or the procedure itself – they can at least pay workers for the time they are off work.

Extending sick leave and annual leave to a wider range of workers can also avoid some of the pitfalls of other company interventions. Even as state legislatures pass draconian laws like the Texas law that prohibits “aiding and abetting,” companies rarely know exactly how workers spend their free time, especially when it comes to vacations. It is then more difficult to impute responsibility to the employer.

More privacy, less controversy

For the same reason, sick leave and vacation policies also provide workers with some privacy. Unlike policies involving travel or health benefits, employees can often take time off without providing receipts or documentation.

Finally, a quiet expansion of paid company leave allows employers to help women without causing controversy. Companies are already nervous about discussions related to abortion in the workplace. They may not want to generate more internal conflict at a time when partisan rancor is at its height.

And while increased paid time off might not seem like much, it would be one less hurdle for women who only experience hurdles.

This article is republished from The Conversation under a Creative Commons license. Read the original article here: https://theconversation.com/abortion-benefits-companies-have-a-simple-and-legal-way-to-help-their-workers-living-in-anti-abortion-states – develop-paid-leave-185917.

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