Many companies, quick to announce abortion-assisted policies in the wake of last month’s Supreme Court ruling that overturned Roe v. Wade, remained vague on the details. Many offered travel reimbursement, but few made plans for how employees could use such a benefit and maintain their privacy.
“It’s important for companies to structure this so that an employee has to reveal as little as possible,” said Loyola Law School law professor Brietta R. Clark.
“Ideally, companies should make this available as easily as possible and as widely as possible without anyone having to reveal private information about their specific medical condition or treatment,” said Clark, who is an expert in law. health and inequality.
NBC News contacted more than 20 companies that said they would reimburse employees who had to travel out of state to receive abortion care. We asked specifically how policies would be enforced, who would be covered, and whether systems were already in place.
Amazon, Meta, Disney, Warner Bros. Discovery, Apple, Bumble, NBA and WNBA, Zillow, Tesla, Starbucks and Airbnb did not respond to questions.
Dick’s Sporting Goods, CVS and Microsoft referred us to their previously released statements, which did not answer questions.
Netflix spokesperson Bao Nguyen said its policy will be available to all full-time employees and has been in place for the past few weeks. Nguyen said employees would use their health insurance to receive travel reimbursement and would not have to disclose the reason for their leave.
“We have a flexible leave policy, where employees take the days off they need (instead of having to submit a request to HR or their manager),” Nguyen said.
A spokesperson for H&M said “the company’s employee financial assistance program is for eligible U.S. employees who may reside in a state that restricts or prohibits abortion services.”
Both part-time and full-time employees are eligible, according to the company, and “employees can confidentially apply for emergency financial assistance from this fund by applying online through an internal web portal.”
LiveNation also said its procedures for applying for benefits would be kept confidential.
SAP, the software company headquartered in Germany with more than 105,000 employees worldwide, presented the most comprehensive plan.
The policy was put in place on Friday, June 24, the same day the Supreme Court overturned Roe, said Jackie Montesinos Suarez, communications manager for SAP North America.
Each U.S.-based employee, whether part-time or full-time, who is covered by SAP insurance, along with their dependents, is eligible to receive up to $5,000 for travel and accommodations, and can travel to any US state for treatment.
“It’s the same thing we offer to employees who need a transplant,” said Montesinos Suarez.
Employees and dependents can go directly through the insurance company to receive the benefit. “HR or anyone at SAP is not part of the reimbursement process,” Montesinos Suarez said.
“Employee feedback has been overwhelmingly positive,” she added.
Companies promising confidentiality and allowing employees to go through third parties and thus avoid human resources and management have good intentions, said Paula Roy, vice president of human resources with more than 30 years of experience. But employees will go to HR first anyway, she said, potentially exposing the company to liability and the employee to privacy violations.
Employees typically start with HR because they’re looking for HR to “direct them to the appropriate resource,” Roy said.
“It will always go through HR first, even when there are things people can get directly from the PEO [professional employer organization to which companies outsource] and don’t need our help.”
A Disney employee, who wished to remain anonymous to speak on a sensitive subject, agreed.
“I would go to HR first,” she said. “Because it’s a huge undertaking and it’s hard to come up with answers in advance without having to talk to multiple people.”
“The big media companies provide links and information about your benefits, but that’s about it,” she said. “So that’s a lot of stuff you have to dig yourself out.”
The employee said she would feel “rather uncomfortable” going to HR seeking help accessing the abortion, “because it’s a deeply personal matter.”
“It shouldn’t be anyone else’s business,” she said.
But for employees who don’t know they can go directly through their company’s insurance or PEO, and for employees who need HR help navigating complicated benefits websites, their business will become other people’s business, Roy said.
“Is it going to go through the payroll people? A human resources assistant?” she asked. “HR are pretty professional and don’t share what they shouldn’t share, but there are no guarantees.”
“Information should be shared, even if you don’t share details,” Roy said. For example, a manager would need to know that an employee needs several days off to travel and recuperate.
“I think there’s a lot of concern about who would need to know, who would potentially share information, and who should keep records and findings on those records,” she said.
But, Clark said, “HR doesn’t have to document, ever.”
“An employee’s question about ‘where can I find resources?’ should not be documented,” she said.
“If you want employees to feel comfortable being able to access funds for out-of-state health care, don’t except abortion,” she said. “I think we should look at structuring this in a way that recognizes that transportation for medical care is critical to access, and doesn’t put women who need reproductive health care through particular hurdles. or something that meets their medical needs.”
Clark said she “applauds” companies that implement abortion assistance benefits for employees in a way that “supports their medical privacy and protects them.” But she acknowledges that companies can open themselves to attempts by states to prosecute them criminally or civilly, even if they are ultimately able to defend themselves against such actions.
Texas Attorney General Ken Paxton has previously said he plans to sue companies that provide funding for employees’ out-of-state abortion care.
“If a state specifically crafts a law that says insurance plans cannot fund abortion services,” some employers may be bound by those prohibitions, Clark said. Others, especially self-insured employers, may be able to avoid the law due to federal preemption under ERISA, a federal law that protects those covered by private insurance plans.
Health plans must also comply with the Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy of patient health information. But there are exceptions that allow disclosure when required by law, such as through a court order or a mandatory reporting system.
However, the US Department of Health and Human Services recently updated language on HIPAA, stating that its privacy rule “supports such access by giving individuals assurance that their protected health information, including information relating to abortion and other sexual and reproductive health care, will be kept private.
Additionally, Clark pointed out that Judge Brett Kavanaugh, in his concurring opinion on the quashing of Roe v. Wade, wrote, “Can a state prohibit a resident of that state from traveling to another state to have an abortion? In my opinion, the answer is no based on the constitutional right to travel between states. Clark said this could be one of the strongest limits on states’ attempts to prevent women from having abortions outside their own borders.
“Tons of litigation is about to happen where we find out what laws will come into play and what protection they provide,” Clark said.
“The reality is,” Clark added, “no matter how strong legal defenses companies may have, the threat of liability, the threat of criminal charges, has a chilling effect.”
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