December 15, 2022
Volume XII, Number 349
December 15, 2022
– Private Equity & Healthcare: Antitrust Enforcement in 2023–PE…by: John D.Carroll and Michael G.McKinnon
– CFPB Fall Supervisory Highlights Find Credit Reporting Failures, Junk…by: Moorari Shah and A.J.S.Dhaliwal
– Labor Board Returns to ‘Overwhelming Community of Interest’ Standard…by: Jonathan J.
Spitz and Richard F.Vitarelli
– NLRB Expands Make-Whole Remedy to Include ‘Direct or Foreseeable’…by: C.Thomas Davis and Zachary V.
Zagger
– Beyond Backpay: Labor Board Adds Extra Compensation to Employees in ‘…by: Jonathan J.
Spitz and Richard F.
Vitarelli
– Special Delivery: NLRB Returns to Obama-Era Standard to Limit…by: Michael J.Lebowich and Joshua S.
Fox
– Recent Developments to the 340B Drug Pricing Program [PODCAST] by: Victoria K.Hamscho and Andrew D.Ruskin
– Festive NLRB Provides Holiday Gifts to Unions/Employees by: Robert E.Entin
– Third Circuit: Whistleblowers Are Not Shielded From Discipline for…by: Steven J Pearlman and Pinchos (Pinny) Goldberg
– Psychedelic Drugs – Easing the Regulatory Hurdles for Development by: Lauren P.Carboni and Devaki Patel
– CFPB and State Regulators Hone in on Interest-Bearing Crypto Accounts by: Moorari Shah and A.J.
S.Dhaliwal
– U.S.Supreme Court to Decide Whether Appeal of Denial of Motion to…by: William Robert Gignilliat, IV and Samia M.Kirmani
– OCC Revises Policies and Procedures for Civil Money Penalties by: Moorari Shah and A.J.S.Dhaliwal
– Several New Group Health Plan Reporting Deadlines Are Approaching –…by: Nick J.
Welle and Hannah R.Demsien
– CMS Includes MAOs in Data Exchange and Prior Authorization…by: Christine M.Clements and Sheela Ranganathan
– Abortion-Related Time Off After Dobbs: How the FMLA and Other Laws…
by: Frank C.Morris, JR and Susan Gross Sholinsky
– Battle Lines Drawn on Electric Vehicle Tax Credit Specifics by: William Ball
– Emerging Threats: Cyber Attacks and Side-Channel Evolution by: Iliana L.Peters and Colin H.Black
– ’Tis the Season for California’s 2023 Legislative Update: Employer…by: Vanessa C.Krumbein and Rana Ayazi
– Guide to Creating a Corrective Action Plan Template by: Dr.
Nick Oberheiden
– Ten Environmental and Energy Issues to Watch in 2023 by: J.Michael Showalter and Amy Antoniolli
– Treasury Announces a Second Application Round for ECIP Investments by: Neil E.Grayson and Robert Klingler
– S.D.N.Y.Voids ERISA Plan’s Arbitration Provision by: Joseph E Clark and Daniel B.Wesson
– Michigan Minimum Wage and Paid Leave Update: Agency Guidance and the…by: Emily M.Petroski and Allan S.
Rubin
– NLRB Reinstates “Micro Unit” Standard Making it Easier for Unions to…by: James J.La Rocca and Robert T.Dumbacher
– Love and Marriage: How the Respect for Marriage Act Affects Employers…by: J.
William Manuel and Anne R.
Yuengert
– DHS Issues Guidance on Additional H-2B Temporary Nonagricultural…by: Jessica Feinstein
– 12 Days of CRM: Day 1 – How to Measure CRM Success by: Christina R.Fritsch JD
– Staff Says Some Non-GAAP Financial Disclosures Are Beyond Redemptive…by: Keith Paul Bishop
– A Direct Hit: NLRB Expands Make-Whole Remedies to Cover All “Direct…by: Michael J.
Lebowich and Joshua S.Fox
– NLRB Dramatically Increases Liability for Unfair Labor Practices with…by: Adam C.Abrahms and Neresa A.De Biasi
– False Claims Act: Prediction on Supreme Court Ruling on Government…
by: Lori A.
Rubin and Pauline R.Wizig
– Proxy Season Greetings: ISS and Glass Lewis Announce Policy Updates…by: Colleen Hart and Andrea S Rattner
– Supreme Court Declines to Clarify FCA Pleading Standard by: Scarlett Singleton Nokes and Virginia C.Wright
– Full Speed Ahead: District Court Entitled to Explore Litigation…
by: Amol Parikh
– Economically Motivated Adulteration in Honey by: Food and Drug Law at Keller and Heckman
– China Announces New Management Measures for Food-Related Products by: David J.Ettinger and Eric Gu
– Ratings Agencies Increase Focus on “Green Ratings” by: Jacob H.
Hupart
– Increased Federal Attention to Skilled Nursing Facility Compliance…by: Anne M.Murphy and Rachel Hold-Weiss
– European Commission to Start Adequacy Decision Adoption Process for…by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– Applying Collateral Estoppel in IPRs by: Alexandra Cavazos, PhD
– Appellate Court Addresses How Much Information Employee Must Submit…by: Tasos C.Paindiris and David Mohl
– Improving Liquidity Through Real Estate Sale and Leaseback…by: Simone Wijngaard and Alexander van Hövell
– The Ultimate Lawyer Time Off Checklist by: Kamron Sanders
– PTO Announces Cancer Moonshot Expedited Examination Pilot Program by: Bernard P.Codd
– Do Law Firms Use HubSpot? by: CRM News and Updates, Lawmatics
– Litigation Minute: Year in Review—Trending Topics Across the 2022…
by: Lindsay Sampson Bishop and Jacquelyn S.Celender
– The State of ESG Reporting in Australia by: Clive Cachia and Adam Levine
– Supreme Court to Hear Case on Whether Lawsuits are Stayed During…by: Ron Chapman, Jr.and Zachary V.
Zagger
December 14, 2022
– Certain Green Cards Getting 24-Month Extensions as USCIS Deals With…
by: Michael H.Neifach
– Ankura CTIX FLASH Update – December 13, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– Australia: Climate and Sustainability-Related Financial Disclosure…by: Jim Bulling
– Ankura CTIX FLASH Update – December 9, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– New Washington State Guidance A Reminder That More State Pay…by: Aaron Vance
– Washington Supreme Court Affirms Ecology’s Authority to Bypass…by: Erika H.
Spanton and Allyn L.Stern
– NLRB Unleashes New Damages Against Labor Law Violators by: Mark J.Neuberger
– Illinois Appellate Court Weighs in on Biometric Data Policies by: David M.Poell and Kari M.Rollins
– FTC Issues Green Guides Questionnaire by: Phyllis H.Marcus
– Traveling for the Holidays: Planning for Successful International…
by: Ann H.Lee and Michael J.Bonsignore
– NYC Council Considering Proposal To Significantly Limit At-Will…by: Evandro C Gigante and Joseph C O’Keefe
– Webinar Recording: Navigating Today’s Privacy Compliance…
by: Cynthia J.Larose
– Pennsylvania Takes Emergency Action to Regulate Conventional Oil…by: David J.Raphael and Brianna K.Edwards
– A Look At The Upcoming European Unitary Patent And Unified Patent…
by: Angela B.Freeman, M.S.and Rory P.Pheiffer
– Massachusetts Unveils New Workplace Poster, Notifications for…by: Rachel Reingold Mandel and Ashley Prickett Cuttino
– US Executive Branch Update – December 14, 2022 by: Stacy A.Swanson
– Michigan Court of Appeals Hears Argument on the Adopt and Amend…by: Luis E.
Avila and Maureen Rouse-Ayoub
– California Wage and Hour Issues for Employers to Watch in 2023: Is My…by: Karen E.Wentzel and Michael W.Kelly
– AML Bill Key to Busting Russian Oligarchs by: Stephen M.
Kohn and Grace Schepis
– SEC and CFTC Whistleblower Programs Reveal Continued Success…by: Jason Zuckerman and Matthew Stock
– Prices Keep Rising: Labor Board Significantly Expands Remedies…by: David J.Pryzbylski and Aaron Vance
– More on Understanding the Medicare Overpayment Appeals Process by: Kendall R.
Walker and Courtney G.Tito
– New York State Provides Protection for Use of Leaves of Absence by: Jonathan A.Wexler
– US Executive Branch Update – December 13, 2022 by: Stacy A.Swanson
– Looking Ahead to 2023: Pay Transparency Developments by: Allan S Bloom and Evandro C Gigante
– What Does 2023 Hold for California COVID-19 Supplemental Paid Sick…by: Benjamin A.Tulis
– AND ANOTHER ONE! TCPA CLASS DISCOVERY LIMITED: Third Party Subpoena…by: Jenniffer Cabrera
– Reminder: New Tax Forms for Retirement Plan Payment Withholding…by: Jeffrey M.
Holdvogt and Diane M.Morgenthaler
– Ninth Circuit Answers Lingering Question on Scope of ‘Autodialer…
by: Joseph C.Wylie II and Nicole C.Mueller
– Speak Out Act Takes Effect, Enhanced Data Privacy Obligations for…
by: George Carroll Whipple, III
– Preparing for New SBA Certification Requirements for Veteran-Owned…by: Erin L.Toomey and Frank S.Murray
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– HHS Bulletin: Covered Entities’ Disclosure of PHI Collected via…
by: Ryan P.Blaney and Danielle L.
Brooks
– When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community by: Dana M.Lingenfelser and Kristin D.Mitcham
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…by: Eric J.
Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…by: David A.Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.Department of State to Update Design on Nonimmigrant and…by: Ashley K.
Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…
by: Lynn L.Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…by: Amber K.Dodds and Robert S.Nichols
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…
by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…
by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…by: Paul V.
Kelly
– U.S.Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.Phillips and Christopher M.Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…
by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.
Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…
by: Hannah Laming and Adam Klauder
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…
by: Frank M.Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…
by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…
by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.
Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…
by: David A.Lopez-Kurtz and Alex J.Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.
Koegel and Stephen C.Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…
by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…by: Adam S.Forman and Nathaniel M.Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.
Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…by: Joseph J.Mamounas and Claudia D.
Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…by: J.Hunter Robinson and Josh Kleppin
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…
by: Simone R.D.Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.Hupart
Abortion-Related Time Off After Dobbs: How the FMLA and Other Laws Might Apply
The U.S.Supreme Court’s decision in Dobbs v.
Jackson Women’s Health Organization, overturning Roe v.Wade and Casey v.
Planned Parenthood and leaving the legality of abortion up to each state, inevitably will increase the number of individuals who seek to travel to receive abortion services and, in turn, request time off from work.
Employers must therefore address the question of whether they are required to provide time off for abortion-related care, including possible requisite travel time, under federal laws, such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Pregnancy Discrimination Act (PDA) (part of Title VII of the Civil Rights Act of 1964 (Title VII)), or under comparable state and local laws.While the legal landscape is anything but clear, there are certainly arguments that abortions (even if elective), and any accompanying travel time, could be the basis for leaves under one or more of these laws.
FMLA
Under the FMLA, eligible employees with sufficient service working for employers with 50 or more employees are entitled to an unpaid, job-protected leave of absence of up to 12 weeks in a 12-month period for various reasons related to caregiving and medical issues.
With respect to one’s own health conditions, medical leave is permitted only for a “serious health condition” that, as the statute specifically states, “makes the employee unable to perform” the essential functions of their job.The FMLA also provides that time off to care for a spouse, son, daughter, or parent who has a serious health condition is among the qualifying reasons for leave.
A.Time Taken Due to a Serious Health Condition
The FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition that involves inpatient care ..
.
or continuing treatment by a health care provider” (emphasis added).
INPATIENT CARE
The governing regulations provide that “inpatient care means an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity …or any subsequent treatment in connection with such inpatient care.” As most abortion procedures do not involve an overnight hospital stay, they may not qualify for FMLA coverage on the basis of the “inpatient care” provision.
CONTINUING TREATMENT BY A HEALTH CARE PROVIDER
The definition of the term “continuing treatment” in the FMLA includes two specific examples that potentially could be met by obtaining an abortion: “incapacity due to pregnancy” and “prenatal care.”
More generally, however, continuing treatment by a health care provider includes a period of incapacity and treatment, which is as follows:
A period of incapacity of more than three consecutive full calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
Treatment two or more times, within 30 days of the first day of incapacity, unless extenuating circumstances exist, by a health care provider, by a nurse under direct supervision of a health care provider, or by a provider of health care services (e.g., physical therapist) under orders of, or on referral by, a health care provider; or
Treatment by a health care provider on at least one occasion, which results in a regimen of continuing treatment under the supervision of the health care provider.
The requirement in paragraphs [(1) and (2) above] for treatment by a health care provider means an in-person visit [the meaning of which has evolved in recent years] to a health care provider.The first (or only) in-person treatment visit must take place within seven days of the first day of incapacity.
Whether additional treatment visits or a regimen of continuing treatment is necessary within the 30-day period shall be determined by the health care provider.
Thus, although neither the FMLA nor its regulations mention abortion, the law could apply to an employee’s (or their family member’s) abortion-related care, depending on the type of treatment and length of the continuing treatment regimen.
The U.S.Department of Labor (DOL), the agency that enforces the FMLA, has yet to provide any direct guidance on the question of whether obtaining an abortion—including travel across state lines when necessary—qualifies for FMLA protection.
Nevertheless, the DOL has issued detailed guidance with examples of common medical conditions that could qualify as a “serious health condition” under the FMLA.In one example, the guidance explains that even a cold or the flu can qualify when an “individual is incapacitated for more than three consecutive calendar days and receives continuing treatment by a health care provider.” This continuing treatment could be in the form of a diagnostic visit followed by a regimen of care, such as prescription drugs like antibiotics.
Note, however, that this guidance letter, issued in 1996 (before the rise of the internet, telemedicine, and virtual office visits), asserts that a telephone consultation with a health care provider would not qualify as “treatment.” More recently, updated DOL FAQs and a field assistance bulletin have made clear that telemedicine visits can be sufficient to establish a serious health condition in some situations.
The same 1996 guidance letter also recounts some of the legislative history behind the FMLA, including public comments submitted during the rulemaking stage, noting that the meaning of “serious health condition” is “broad and intended to cover various types of physical and mental conditions” and “is intended to cover conditions or illnesses that affect an employee’s health to the extent that he or she must be absent from work on a recurring basis or for more than a few days for treatment or recovery.” Similar standards apply to a child, spouse, or parent of the employee.The DOL’s intention for the FMLA to be interpreted broadly may provide support for an employee’s assertion that their seeking an abortion (or assisting a family member with same) qualifies for FMLA protection.
It is also notable that the legislative history of the FMLA includes miscarriage as a possible serious health condition, which arguably supports the position that the FMLA protects time off to obtain an abortion.Specifically, the House and Senate Committee Reports included a non-exhaustive list of the types of illnesses and conditions that would likely qualify as serious health conditions:
Examples ..
.include but are not limited to …ongoing pregnancy, miscarriages, complications or illnesses related to pregnancy, such as severe morning sickness, the need for prenatal care, childbirth and recovery from childbirth.S.Rep.No.
103-8, at 40 (1993); S.Rep.No.103-3, at 29 (1993).
It certainly seems possible that employees may seek to draw parallels between, on the one hand, abortions and miscarriages and, on the other hand, recovery from childbirth and recovery from an abortion.
Courts have also broadly interpreted what constitutes a “treatment” and a “serious health condition” under the FMLA.In the few cases that have probed these concepts, a mere physical examination and blood draw was enough to qualify as a “treatment,” even in the absence of a diagnosis or medication.
Seemingly ordinary illnesses, such as the flu, can be a “serious health condition” if an employee is unable to perform job functions for more than three consecutive days.See, e.g., Krenzke v.Alexandria Motor Cars, Inc., 289 F.App’x 629, 630 (4th Cir.2008); Miller v.AT & T Corp., 250 F.3d 820, 833 (4th Cir.2001); and Wheeler v.
Pioneer Developmental Services, Inc., 349 F.Supp.2d 158, 160 (D.
Mass.
2004).
Accordingly, there is clear support for a broad interpretation of what constitutes “treatment” under the FMLA, such that an abortion procedure and subsequent treatment may qualify.
MENTAL HEALTH EFFECTS OF ABORTIONS AS A JUSTIFICATION FOR FMLA LEAVE
The FMLA’s definition of “serious health condition” explicitly includes “mental conditions” that require inpatient care or continuing treatment by a health care provider.An employee might present a certification from their health care provider stating that FMLA leave is needed for continuing treatment related to potential abortion services because being pregnant or having obtained an abortion is causing the employee depression (or other mental health issues, such as anxiety or emotional distress) and, in such instances, the employee could present a plausible argument that the FMLA would apply.
B.Time Taken for Travel Associated with a Serious Health Condition
There is also some support from case law that the FMLA may cover travel time when travel is intertwined with the medical care, treatment, or procedure that is covered by the FMLA.In Michaels v.City of McPherson, 71 F.Supp.3d 1257, 1258 (D.Kan.
2014), the U.S.District Court for the District of Kansas denied an employer’s motion for summary judgment seeking to dismiss an FMLA interference claim, finding an issue of fact as to whether time an employee spent traveling out of town to take his stepdaughter for a medical procedure (a sleep-deprived electroencephalogram (or “EEG”) that was scheduled for the next day was time needed to “care for” a family member under the FMLA.In this case, the employer had granted the employee FMLA leave for the day of the procedure but denied FMLA leave for the day prior, when the employee would be driving his stepdaughter out of town to the site of the procedure.The employee argued that the travel time was medically necessary as part of the pre-procedure protocol, while the employer argued—unsuccessfully—that the travel time was merely an issue of convenience.
Protected leave may cover travel time for the provision of physical and psychological care of a family member, even if intertwined with leisure activities.
In Ballard v.Chicago Park Dist., 741 F.3d 838 (7th Cir., 2014), the U.S.
Court of Appeals for the Seventh Circuit held that an employee’s trip to Las Vegas to care for her mother, who had a serious health condition, was protected under FMLA.The court reasoned that the FMLA statute does not include a geographical limit in the definition of care.
Indeed, courts have declined to grant summary judgment even where an employee’s extended travel abroad involving care for a family member was viewed skeptically by the employer.See, e.g., Edusei v.Adventist Healthcare, Inc., No.CIV.A.
DKC 13-0157, 2014 WL 3345051, at *8 (D.Md.July 7, 2014).
Further, the FMLA regulations provide that travel in connection with an adoption or foster care placement is, indeed, covered by the FMLA:
Employees may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed.For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption.(Emphasis added.)
As such, it appears reasonable to argue that travel in connection with a serious health condition would also be covered.
These cases may be instructive in a post-Dobbs world where employees seek to use FMLA leave for travel time for out-of-state abortions (for themselves or for a family member).
State Leave Laws
In addition to the FMLA, many states (and some cities) maintain their own family/medical leave laws.Therefore, employers should consider whether such current laws require an employer to provide protected leave to an employee or family member for abortion-related reasons.
Further, some states have proposed laws that would clearly support protected leave for these purposes.
For example, the New York State Senate is considering a bill that would provide paid family leave to mothers, non-birthing parents, and family members of a person affected by the result of any pregnancy outcome, including a stillbirth, miscarriage, or abortion, to properly cope with potential emotions from such events.
Illinois recently expanded its Child Bereavement Act to include various assisted reproduction and pregnancy loss circumstances as qualifying reasons for protected leave from work.That law, once its amendments take effect on January 1, 2023, will permit leave for miscarriages and stillbirths but does not explicitly include procedures such as elective abortions.
California law also provides for protected leave for a pregnancy-related disability, which does not expressly cover abortion.
However, since the law would apply to recovery from a miscarriage, there is an argument that it would likewise apply to recovery from an abortion.
From a practical perspective, New York, Illinois, and California employees are arguably less likely to have to travel to obtain abortion services.
Nonetheless, employees in these states could seek to use these laws in connection with the care of relatives in other states that do require travel for abortion services.
Some cities, such as Austin and Dallas in Texas, and St.Louis, Missouri, have paid parental leave programs, but none expressly cover abortion-related leave.
ADA
Employers with 15 or more employees are covered by the ADA.While normal pregnancy alone is not considered a disability under the ADA, pregnant employees may have pregnancy-related impairments that qualify as disabilities under the ADA.In order to qualify, a pregnancy-related impairment must substantially limit a major life activity (which includes, for example, walking, standing, or lifting) or a major bodily function, and, where such impairment is present, an employee might seek leave as a reasonable accommodation to obtain an abortion.Alternatively, employees may have complications following abortions, which may fall under the ADA’s definition of “disability.” Therefore, employees who obtain an abortion might seek a reasonable accommodation, which might include a leave of absence or a temporary modified schedule.
When an employer is faced with an employee seeking time off or other accommodation related to abortion services that is not otherwise covered by the FMLA (or other leave laws), employers should be prepared to engage in the interactive process if it’s a situation where the ADA could apply.
Moreover, some state and local anti-discrimination laws also require employers to engage in the interactive process and provide reasonable accommodations to employees with disabilities who request them.Documentation of this process may also be required.A variety of state and local laws also require reasonable accommodations for pregnant workers.For example, California requires that employers grant an employee’s request for reasonable accommodations for a condition related to pregnancy, childbirth, or related medical conditions, upon the advice of the employee’s physician.
In New York City, employers are required to reasonably accommodate the needs of an employee due to pregnancy, childbirth, or related medical conditions, regardless of whether any of these things are accompanied by a period of disability, unless doing so would impose an undue hardship on the employer.
PDA
Employers should also consider protections available under the PDA, a 1978 amendment to Title VII that was enacted to include discrimination based on pregnancy, childbirth, and related medical conditions within Title VII’s definition of “sex discrimination.” The PDA doesn’t just protect pregnant employees from discrimination; it also requires that pregnant employees be treated the same as non-pregnant employees who are similar in their ability or inability to work.In other words, a pregnant employee who is temporarily disabled due to pregnancy is entitled to leave “to the same extent that other employees who are similar in their ability or inability to work are allowed to do so.”
Case law exists supporting the proposition that the PDA covers abortion.For example, in Doe v.C.A.R.S.Protection Plus, Inc., 527 F.3d 358, 361 (3d Cir.), order clarified, 543 F.3d 178 (3d Cir.2008), the U.S.Court of Appeals for the Third Circuit reversed the grant of summary judgment to an employer that allegedly terminated an employee for having an abortion.
The C.A.R.S.Protection Plus court held that the term “related medical conditions” under the PDA includes abortion and that protections generally afforded pregnant women under the PDA also extend to women who have elected to terminate their pregnancies.In so holding, the court gave “a high degree of deference” to the Equal Employment Opportunity Commission’s guidance, stating: “The basic principle of the [PDA] is that women affected by pregnancy and related conditions must be treated the same as other applicants and employees on the basis of their ability or inability to work.” See also Appendix 29 C.F.R.pt.1604 App.(1978), and Questions and Answers on the Pregnancy Discrimination Act, 29 C.F.R.pt.
1604 app., Question 34 (1978) (“An employer cannot discriminate in its employment practices against a woman who has had or is contemplating having an abortion.”).
It is important to note, however, that Title VII has an exception for religiously affiliated organizations, given the rights of churches and other religious institutions under the First Amendment to decide matters of church government, faith, and doctrine without government interference.In addition, under what is known as the “ministerial exception,” courts are bound to stay out of employment disputes involving those holding certain important positions with churches and other religious institutions.Our Lady of Guadalupe v.Morrissey-Berru, 140 S.Ct.
2049 (2020).Additionally, in Burwell v.Hobby Lobby Stores, Inc., 573 US 682 (2014), the U.S.
Supreme Court held that First Amendment protections can protect closely held corporations and for-profit institutions with strong religious views.Therefore, religiously affiliated organizations, and possibly closely held corporations and for-profit institutions with strong religious views, should consider whether this exception might apply if faced with an employee leave request related to abortion care.
What Employers Should Do Now
Given the lack of substantial authority on the intersection between leave and accommodation laws and abortion, and the impact Dobbs is likely to have on individuals seeking abortions (many of whom may now seek to travel to receive abortion services), employers may be faced with increased and novel issues related to requests for leaves of absence or accommodations in connection with abortion services.Therefore, employers may want to be proactive and begin to consider how to respond to an employee who requests job-protected leave under the FMLA or state/local laws to obtain an abortion or to care for a family member who seeks or has had an abortion (and who now may need time off to travel to obtain such care or for recovery).
Employers should also consider taking the following actions:
Be prepared to engage in the interactive process (when appropriate) if an employee who seeks time off to obtain an abortion or for post-abortion complications asserts that they are covered by the ADA or state/local disability laws and/or the FMLA or comparable state/local leave laws.
Treat documentation in support of leave requests for abortion-related reasons as you would medical documentation provided for any other reason, including maintaining the confidentiality of the employee’s medical information and assuring such records are kept separately and securely.
If you are not exempt from coverage under the PDA, treat abortion-related requests for leave the same as other non-abortion-related leave requests.
Train management and human resources personnel about how to properly address employee requests for leave and how to avoid discrimination claims where the request relates to abortion services or recovery.
Mason Gardner also contributed to this article..