No matter how you feel personally about abortion, if your company has offices in a U.S. state where abortion is now illegal, or is greatly restricted, compliance concerns abound.
Companies from Amazon to Apple have made public commitments to fund employee travel to states where abortion is legal should the service be requested by affected employees. Many employees are upset, and companies like Salesforce have offered to help any employee who wishes to relocate out of Texas in response to its new law on abortion.
According to the Guttmacher Institute, 26 U.S. states are likely to criminalize or severely restrict access to abortion, and some already have.
Companies are responding to this in various ways, many of which create compliance complications. Here are some things to think about now.
Compliance Considerations in a post-Roe World
What is the confidentiality policy for traveling?
After the June 24th Roe decision was published, many companies made internal announcements committing to funding abortion-related travel without making those announcements public.
Both public and internal pronouncements create the need for policies around how this type of reimbursement can be operationalized, especially when privacy concerns are likely in play for the person requesting travel.
Consideration should be given to the following questions in drafting such a policy.
- Will the time be accounted for in the HR system in a way that links back to the procedure?
- Will the finance staff be privy to the information if a finance person is reviewing receipts to reimburse the costs?
- Is the individual’s manager to be told why they are taking time off? If not, what information should be given?
- What if the individual requests confidentiality or anonymity? How will that be handled?
- How will records be secured?
These considerations need to be addressed in policy documents, especially as they relate to confidentiality.
How do we handle whistleblowers?
Most, if not all, Codes of Conduct refer to a company’s commitment to following all laws.
Several states, including Missouri, are considering draft legislation that would make it illegal for anyone to assist an individual to obtain an abortion out of state. While there are certainly legal questions surrounding the constitutionality of limiting the right to travel between states, some or all these laws may very well make it onto the books.
If an employee knows of another that traveled to obtain an abortion, this could lead to whistleblowers calling the hotline to report violations of the law and/or Code. A uniform policy should be considered for handling these types of reports.
What do we do about employees filing bounty-hunter suits using information learned on the job?
Texas’s S.B. 8 law allows private citizens to file civil lawsuits against anyone suspected of performing or inducing an abortion, or anyone who “aids and abets” an abortion, with penalties of at least $10,000 per abortion within four years of the procedure or prohibited action.
Oklahoma has now passed a similar law with a similar bounty for filing and winning such suits. Other state legislatures are considering passing similar laws.
Companies must grapple with how to deal with these types of situations.
If, say, a worker in HR in Texas knows of an employee requesting time off to travel for an abortion, that worker could conceivably file such a suit each time they know of such a request.
How will the company handle such situations? How can they be protected against?
Consideration should be given to these concerns and policy or procedure should be in place to manage them.
How do we manage privacy concerns?
Prior to the recent Supreme Court decision on Roe, most employers would never know of an employee’s decision to terminate a pregnancy.
Now, if an employee wants to take advantage of the company’s policy, they can’t do so without sharing their decision. Privacy concerns abound in this situation, and it is critical to consider how this information will be shared and stored.
Abortion is a healthcare-related matter covered, in most cases, by HIPAA, which limits how abortion-related information may be shared.
As the company will have this type of highly sensitive information, counsel should be engaged now to ensure there is a legal strategy in place should prosecutors request such information.
How do we manage culture and retaliation?
When an issue as politically and religiously charged as abortion becomes a work issue because the company is involved, inevitably some people will be upset.
Retaliation by managers or others who know about a terminated pregnancy is a real concern. An employee who feels penalized for actions supported by the company (but not her manager) can create a highly uncomfortable situation.
Company culture can be affected by such a divide. Care must be taken to manage differing opinions in the workplace and to manage messaging around what to do when these situations are known about by a subset of the employee population.
What happens if the company is prosecuted?
It is not inconceivable that a company could be prosecuted for violating state abortion law. It may be worth having counsel involved now in considering how the company would respond.
What to Do Now
In light of all of these concerns, what do we do now?
First, work through the proceeding questions and determine which are likely to be problematic for your company. Thereafter:
Create a Documented Process for Disclosure
If your company has made a travel commitment, publish a clear process for disclosure to the employee population.
Make sure that the people receiving disclosures are trained in privacy and know what to do in response. Create strong privacy-related processes, including line items in the record retention and deletion policy to ensure such records are purged as appropriate.
Create a Documented Process for Payments and Recordkeeping
Ensure that the company has a policy in place to manage payments and recordkeeping for abortion-related travel. From HR to finance, ensure that protections are in place to keep the matter as private as possible.
Manage Culture Concerns
Carefully watch the hotline for calls relating to a toxic working environment, manager mistreatment, and retaliation. Review the culture survey carefully and stay in close contact with HR to ensure good communication on culture concerns.
As the laws change in various states, the company may need to continue making announcements internally about process changes. Be vigilant about having a seat at the table to ensure compliance-related concerns are contemplated in these communications and policy shifts.
The legal landscape in the post-Roe world is likely to become more complicated by the day. Companies are now in a position they never were before, as now are compliance officers managing these highly charged challenges.