Abortion, Guns & Religion

The experts at HR Specialist break down recent decisions handed down by the Supreme Court

  1. The abortion decision:  Consider legal options & risks before offering travel reimbursements or changing benefits

In the wake of the U.S. Supreme Court’s landmark decision last week to overturn Roe v. Wade, you likely heard media reports of many large employers announcing that they will cover employees’ expenses if they travel to another state to receive an abortion. Nike, Disney, Bank of America, and Apple were just a few who publicly announced this employee benefit.

But if you plan to join this group, take note: Legal experts say it’s not as simple as just writing checks to pay for employees’ travel and health care. Much depends on the law in the states where employers and employees are located.

Some 26 states have already restricted women’s abortion rights or are poised to do so soon. In some of those states, it will be illegal to help a woman obtain an abortion, no matter where the procedure occurs. How employers’ benefits plans are structured may also affect their ability to reimburse employee abortion-related expenses.

In general, group health plans can reimburse employees when they must travel to receive medical care. Self-insured health plans have more leeway to cover abortion costs because they are governed by federal law—ERISA. That means individuals in specific states can’t be prosecuted for assisting an employee with her reproductive care.

But fully insured health plans are subject to the laws of the state in which they are licensed. If a state outlaws helping a woman receive an abortion, individual employees who facilitate the procedure by paying some of the costs could face criminal liability.

Short of having travel costs directly reimbursed through a group-health plan, there are other employer-provided benefits that may apply:

  • Employees can use health flexible spending accounts to cover costs. Employers can contribute to employees’ FSAs.
  • Employees can use health savings accounts to cover the cost. Employers can contribute to those, too. However, HSAs must be paired with a high-deductible health plan.
  • Employees can access benefits provided through an employee assistance plan. EAPs traditionally address issues affecting mental and emotional well-being, but they may also be used to manage medical services and travel.
  • Employers can create a relief fund to assist employees. Note that any payments from such a fund would be fully taxable to employees who receive them.

Final tip: The Dobbs decision will almost certainly trigger a tsunami of litigation, making it critical to consult an attorney before deciding whether to reimburse employees for abortion-related care.


2. The gun decision: Employers can still ban firearms in the workplace

Since the U.S. Supreme Court on June 23 gave Americans more freedom to conceal-carry firearms in public, employers have been wondering if they have the right to prohibit concealed guns on their premises. Yes, they can.

An employer may prohibit employees from carrying firearms on their property, whether or not the person possesses a concealed-handgun license.

Last week the Supreme Court voted 6-3 to strike down a New York state law requiring applicants for a license to carry a gun outside their homes to have a “proper cause” to do so. (New York State Rifle & Pistol Association Inc. v. Bruen)

Typically, a concealed-carry permit allows holders to carry a firearm in most public places. However, most jurisdictions stipulate that gun owners may not carry a concealed firearm in certain “sensitive” establishments such as schools, places of worship, hospitals, nursing homes, and, in some places, bars.

The key for employers: Generally, public and private employers are free to prohibit people from carrying concealed handguns on the employer’s premises. Employers can also prohibit nonemployees (customers, vendors, etc.) from carrying firearms on their property. After the court’s new ruling, you may want to remind employees in an email (and put signage outside your workplace) if you have such a policy.

Take note: In many jurisdictions, employers cannot prohibit employees from storing guns locked in vehicles in the employer’s parking lot.

Final tip: Check with your attorney to determine the specific gun-related policies you may issue in jurisdictions where you operate.


3. The religion decision: Court’s OK of football-field prayer doesn’t mean you can require employees to pray

A ruling that got less attention this week was one that said a high school football coach can kneel in prayer with his team after games at the 50-yard-line. The ruling said the First Amendment doesn’t allow the government to suppress such religious expression. (Kennedy v. Bremerton School District)

But the critical point here is that this case involved a government employer. Government employees enjoy greater First Amendment protections at work. Employees in private-sector workplaces don’t have such First-Amendment rights.

The result: While private companies can offer prayer at work and incorporate it into the workday, they cannot require prayer sessions—or punish workers for not participating in them. That’s because Title VII of the Civil Rights Act makes it unlawful to discriminate or retaliate against workers based on religion.

The EEOC will back this up and actually did so this week. The agency announced that it is suing a North Carolina company for allegedly requiring all its employees to attend daily employer-led Christian prayer meetings conducted by the company owner. When a manager asked to be excused, the company cut his pay and then fired him.

HRC Staff

HRC Staff

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