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Instructor
Margie Faulk
The Supreme Court decision overturning Roe v. Wade may bring about several compliance-based questions for the workplace. Employers should understand the issues that may present themselves and what legal developments should be monitored.
Workplace Compliance Concerns
Anti-Discrimination Laws Protect Abortion-Related Decisions. Employers should understand the workplace protections employees have under existing federal anti-discrimination laws and how they apply to an employee’s decision whether to have an abortion.
The Interplay of Employment Discrimination Statutes
Title VII of the Civil Rights Act of 1964 bans employment discrimination based on color, national origin, race, religion, and sex. Additionally, in 1978, Congress enacted the Pregnancy Discrimination Act (PDA) to clarify that discrimination based on pregnancy, childbirth, and related medical conditions is considered unlawful sex discrimination under Title VII. Under these laws, employers are prohibited from firing an employee for having or considering having an abortion, according to the Equal Employment Opportunity Commission (EEOC). Likewise, employees are protected from adverse employment actions based on their decision not to have an abortion. For example, the EEOC said, a manager can’t pressure an employee to have an abortion in order to keep a job, get promoted, or be assigned better projects
Coverage under Health Insurance Plans
“However, Title VII makes clear that an employer that offers health insurance is not required to pay for coverage of abortion except where the life of the mother would be endangered if the fetus were carried to term or medical complications have arisen from an abortion, according to the EEOC.
Pregnancy Discrimination Act:
In addition to protecting workers from pregnancy discrimination, the PDA covers reasonable accommodations for pregnant workers, but only if such accommodations are offered to other employees with similar limitations. “Under the PDA, an employer must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work,” according to the EEOC. A worker who is temporarily disabled due to pregnancy should be allowed to take unpaid leave “to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.”
Americans with Disabilities Act (ADA):
Notably, pregnancy alone is not considered a disability under the ADA. However, a pregnancy-related impairment may be covered by the ADA, in which case you should engage in an interactive dialogue with the employee to explore reasonable
accommodations
Family and Medical Leave Act (FMLA):
While Title VII, the PDA, and ADA apply to employers with at least 15 employees, pregnant workers at larger companies (with 50 or more employees) may be entitled to take time off under the FMLA.
National Labor Relations Board (NLRB) and Concerted Activity Protections:
Employee Concerns about what they can speak about and what they shouldn’t speak about when it comes to this topic in the workplace based on concerted activity protections against retaliation.
Although some Employers either choose to be silent or want to offer employee’s options, it is critical for Employers to be aware of how this decision impact the employees. There will be questions about what can or can’t be done when it comes to health benefits, medical coverage. Discrimination potentials and other workplace activities. An awareness of these issues is important and what Employers need to do based on regulations and guidelines.