Client Alerts & Insights
Post-Dobbs Employment Considerations
August 17, 2022
Authored By:
In Dobbs v. Jackson Women’s Health Organization the United States Supreme Court overturned years of precedent started by Roe v. Wade and conferred the right to regulate abortions to individual states. This marked change has obvious implications in social, political, and medical circles. But why does it matter for employers?
Patchwork Benefits
First, states are already enacting a variety of laws regulating access to abortions. This makes employer benefit compliance challenging, especially for multi-state employers. At least 15 states have enacted partial or total bans on abortions, and legislation continues to develop. Some of these states also impose liability on people or entities that assist people in obtaining an abortion. Employers will need to carefully consider which state laws apply to their employees, especially when operating in various jurisdictions, to reduce the risk of liability if they choose to offer any abortion services benefits. This may be even more challenging in the remote work environment and in today’s competitive labor market.
Discrimination Claims
Aside from just administrative challenges, the change in law opens questions for how employment discrimination claims might be handled, especially with respect to pregnancy and religious discrimination. For example, the Pregnancy Discrimination Act (PDA) prohibits employment discrimination “on the basis of pregnancy, childbirth, or related medical conditions.” Federal courts have held the PDA prohibits adverse employment actions because of an employee’s decision to have or not have an abortion. Courts will likely have to decide how the PDA’s protections interact with a state’s anti-abortion laws. In addition, Title VII of the Civil Rights Act prohibits employers from discriminating against individuals because of their religion. Religious beliefs can often be connected to employee’s positions on abortion. Employers should be aware that employees may bring discrimination claims alleging that they suffered an adverse employment action based on their beliefs with respect to abortion. For example, in Carter v. Transportation Workers Union, a Texas jury recently awarded a former flight attendant $5 million in damages who was allegedly fired for sending anti-abortion messages to her union.
Protected Activity
Finally, speech in the workplace regarding abortion access may be considered “protected concerted activity” protected by the National Labor Relations Act (NLRA), which prohibits retaliation against employees who discuss the terms and conditions of employment. Thus, employees discussing or advocating for an employer to provide benefits to employees for abortion-related healthcare services or advocating for an employer to take a certain public stance on the issue, may constitute protected activity under the NLRA. This includes employee activity on social media.
Employers should review and update policies and practices as needed, especially with respect to social media or off-duty conduct. Benesch attorneys are ready to assist with questions.
Margo Wolf O’Donnell at modonnell@beneschlaw.com or 312.212.4982.
Yelena Katz at ykatz@beneschlaw.com or 216.363.4405.
Latest News
The Coming State-Law Litigation Wave of 2026-27: “Subscription Trap” Class Actions
The subscription economy keeps growing—and so does the wave of class-action litigation targeting it. While the FTC’s regulatory efforts have drawn headlines, private class actions under state laws pose an even greater exposure risk.
Updates to Fees and Grace Periods for Nonimmigrant Visas
Starting September 9, 2026, the 9-11 Response Biometric Entry-Exit Fee will apply to H-1B and L-1 extension petitions filed by employers subject to the fee. Prior to the new rule, the fee was only required for (1) initial grant of status to a foreign national seeking H-1B or L-1 status and (2) a change of employer in the same status.
Third Circuit Decision Reshapes Creditor Standing in Successor Liability Disputes
The Third Circuit recently held that when determining whether a successor liability claim belongs to a bankruptcy estate, the key question is whether the claim seeks to remedy harm suffered by all creditors collectively or a unique injury suffered by a specific creditor. The fact that creditors may be permitted to bring the claim outside of bankruptcy is not, by itself, determinative.
CMS Proposes Sweeping Restrictions on Remote Patient Monitoring: The Outsourcing Ban, Reimbursement Revaluation and Potential Code Consolidation in the CY 2027 Physician Fee Schedule Proposed Rule
CMS’s CY 2027 Proposed Rule would significantly restrict Medicare reimbursement for Remote Patient Monitoring (RPM) and Remote Therapeutic Monitoring (RTM), including banning outsourced clinical staffing, adding new patient-relationship and initiating-visit requirements, reducing certain reimbursement rates, and exploring consolidation of existing billing codes.