Addressing Post-Roe Benefit Considerations

February 2, 2023

As you’ve likely read, late last month the US Supreme Court ruled to overturn Roe v. Wade, delegating the responsibility for determining abortion laws to individual states.  

There’s an unwritten rule in corporate communications that weighing in on politics is something to be avoided at all costs. However, the challenge for employers with a ruling such as Dobbs (the June 24 court case) is that it also holds significant ramifications for employee benefits programs. and associated liability issues, such as taxes.

We’ve had several clients ask for guidance around what this ruling means to their employee benefits programs. As a result, we decided to share a few practical first steps leadership at firms both large and small have available, to address the evolving benefits landscape.  

Citing our own CEO, this article is offered with great respect to the myriad of beliefs and values around this topic.

Full disclosure: We are not legal experts and further recommend firms engage with counsel to develop policies in compliance with the evolving legal landscape.

Roe’s Impact on the Workplace

Because US companies operate in an employer-sponsored health care system, as HBR asserted this week, reproductive health care is also a workplace issue that companies need to address. The past few weeks have seen a host of companies, from Patagonia to Microsoft to Goldman, Citigroup, JPMorgan Chase (and more) share public statements expanding health benefits to cover out-of-state travel for medical procedures.

Even if you are not at the scale or inclination to push out a press release on your Roe response, if you’re on an executive team right now, I’m betting that you had a meeting similar to one I attended last week -- trying to assess what options we have to support employees in multiple locations across the U.S.

Supporting Employees in Impacted Areas  

The first step in establishing your go-forward plan? According to our Insurance Domain Leader, Jeff Sharer, J.D, the key here is to quickly understand your unique landscape.  

  • Know your options, particularly as they pertain to your specific benefits program.
  • Ensure that you understand what state rules apply for each office and states where remote workers live.
  • And then, review your current benefit programs and its medical coverage and understand what could change and what would or would not be covered.

While it’s hard to know what each state will decide, issues in this area are expected to develop rapidly. Which means that employees in states throughout the country will be facing new laws and regulations that will impact their health insurance access and coverage.

Self-Insurers: Many large firms are generally self-insured, which means they pay for all claims and have more flexibility to decide what the plans will cover. A third party then processes the claims on their behalf.

Plan sponsors of fully-insured plans should be evaluating the extent to which state law may impact or otherwise limit their participants' coverage and review their plan documents and insurance policies. Sponsors of self-insured plans should review their documents and have a conversation with their stop-loss carriers and third-party administrators (TPAs).

Smaller Insurance Programs: Smaller companies may have fewer options. They typically buy health insurance for their employees from insurers that are subject to state regulations. According to CBS those companies have less flexibility to design benefits, and they may operate in states that ban abortion.

After you identify the changes, determine what changes the employer does or does not want to make (e.g. travel-related expenses, and benefits regarding fertility treatments or transgender health care, and beyond).

Competing Employee Viewpoints

There is a saying that all politics is local, and there are very few issues in the workplace thornier than belief systems around abortion and other reproductive health rights. And, of course, any change to benefits or healthcare access hits deeply the heart of your Employee Experience.

As you decide on, and then roll out new policy changes for your firm, understand that your organization will likely have competing viewpoints on the subject – which means you will also need a strategy to handle those opinions in an empathetic, thoughtful manner.

Among the many articles addressing changes to workplace politics in the last few weeks, CBS effectively summarized some of the new challenges for today’s leaders in a post-Roe environment: “Beyond the legal questions, abortion travel benefits also present some thorny workplace issues… Employees who don't support abortion may be angry that their company is paying for other employees' travel, for example. Even those who do support abortion may question why the company isn't paying them to travel for fertility treatments or transgender health care.”

Finally, of course, so many of these issues will require strict confidentiality, so ensure your escalation path is also in compliance with HIPAA and other privacy regulations.  

Corporate Responsibility in a Changing World

Walking the line of employee advocacy is a challenge in the best of times. Today’s landscape can pose even more of a challenge, where 60% of employees expect their companies to take personal stands to social or political debates, according to Edelman’s Trust Barometer research.  

For many employers, revisiting benefits offerings today comes down to a more human and personal rationale: To allow all members of their teams to access the same healthcare options regardless of location.

As you develop strategies to acknowledge and address these sensitive issues, respect that you will likely have teammates who may not agree with adding new benefits, and others who will likely want your firm to go farther.

Ultimately, you understand your company culture and values the best, and can rely on decisions made with thoughtful consideration will be the best for your teams.

If you’re revisiting your benefits package, and would like additional counsel, feel free to reach out to our Concertiv insurance experts to learn and weigh your options to make the best-fitting choice for your firm.

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