Honest HR

Navigating the Post-Roe v. Wade Workplace

Episode Summary

One of the most contentious events of 2022 was the U.S. Supreme Court's decision (Dobbs v. Jackson Women's Health Organization) overturning Roe v. Wade. In this episode of Honest HR, host Amber Clayton is joined by SHRM Chief of Staff Emily M. Dickens and Janell Stanton, senior associate/head of the employment law group at Wagner, Falconer, & Judd, Ltd. to discuss implications for work, workers and the workplace.

Episode Notes

One of the most contentious events of 2022 was the U.S. Supreme Court's decision (Dobbs v. Jackson Women's Health Organization) overturning Roe v. Wade. In this episode of Honest HR, host Amber Clayton is joined by SHRM Chief of Staff Emily M. Dickens and Janell Stanton, senior associate/head of the employment law group at Wagner, Falconer, & Judd, Ltd. to discuss implications for work, workers and the workplace, along with questions including:

Earn 1.00 SHRM PDC for listening; relevant details provided during the episode.

This episode of Honest HR is sponsored by Mystery.

Episode transcript

Episode Transcription

Speaker 1: This episode of Honest HR is sponsored by Mystery. Mystery creates meaningful connections at work by curating virtual events for teams based on their shared interests with hundreds of quality vetted events. Mystery has something for everyone. For a special BOGO offer, head to trymystery.com/shrm to book your first event and get the second for free.

Amber Clayton: Welcome to Honest HR, the podcast for all of us HR professionals, people managers, and team leads, intent on growing and developing our companies for the better. We bring you honest, forward-thinking conversations and relatable stories from the workplace that challenge the way it's always been done. Because after all, you have to push back to move forward.

Wendy Fong: Honest HR is a podcast from SHRM, the Society for Human Resource Management. And by listening, you're helping create better workplaces and a better world. I'm Wendy Fong.

Amber Clayton: I'm Amber Clayton.

Gloria Sinclair...: And I am Gloria Sinclair Miller.

Wendy Fong: Now let's get honest.

Amber Clayton: Hello everyone and welcome back. I'm your host, Amber Clayton, Senior Director of SHRM Knowledge Center Operations. On our episode today, we're going to discuss the technical competency, HR expertise, employee and labor relations. This podcast is approved to provide re-certification PDCs, but only if you listen to the full episode. One of the most contentious topics of this year was the decision by the US Supreme Court to overturn Roe versus Wade. Today, we're not going to share our opinions on the decision, but rather we're going to focus on how this decision may impact work workers in the workplace. I'm pleased to be joined by Emily Dickens, Chief of Staff and Head of Government Affairs at SHRM, and Janell Stanton, attorney at Wagner, Falconer & Judd Limited. This is Emily's first time on Honest HR, and I'm really happy that you can join us today and welcome back, Janell. I've been fortunate to have Janell as a guest on a couple of other podcasts in the past, and I'm happy you can join us again.

Janell Stanton: Thanks, Amber. I'm excited to be there. How did I get to almost five years at SHRM? It's my first time on this podcast.

Amber Clayton: I know, I know. Well, I've only been on the Honest HR Podcast for three years now, so yes, we need to get you on here more often.

Emily M. Dicken...: Hello, Janell. So happy to meet you.

Janell Stanton: Yeah, same way.

Amber Clayton: Great. So I thought we'd start our show by providing our listeners with a bit of a background on Roe versus Wade and where we are today in terms of the laws. So Janell, can you start us off and provide us just a brief overview of Roe versus Wade?

Janell Stanton: Yes. So Roe versus Wade was a landmark court decision passed down by the United States Supreme Court that created a federal constitutional right to abortion. Prior to that, it was based on each state in their own court decisions, their own statutes as to whether they would recognize a right to abortion. But the Roe versus Wade opinion created that at the federal level, meaning that states were not allowed to pass laws that contravened that federal constitutional rights.

Amber Clayton: And Emily, can you just provide us an overview of the current federal policies around this topic?

Emily M. Dicken...: Sure, Amber. So the case that we've all now become very familiar with Dobbs v. Jackson Women's Health Organization, that decision does not affect workplace protections in Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act. So when I do these speeches, I talk about Civics 101, and so we have the three different areas of government. And so though this comes down in the courts, which is one area of government, then we also have Congress, and under that the federal agencies. And so when I talk about Title VII of the Civil Rights Act, those are all things that have been promulgated by work from Congress and things of that nature. And then the Pregnancy Discrimination Act as well. So specifically, Title VII prohibits employment discrimination based on race, color, religion, sex and national origin, and sex-based discrimination, which I think is really good for people to understand.

What's under that includes sexual orientation, pregnancy, sexual harassment, and gender identity. So in 1979, Congress amended Title VII to include the Pregnancy Discrimination Act. And this forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits such as leave and health insurance, and any other term or condition of employment. Further, the Pregnancy Discrimination Act makes clear that it's unlawful for an employer to pressure an employee to have or not to have an abortion and to use an employee's decision to have not have or contemplate having an abortion as a reason for an adverse employment decision. The EEOC has issued technical guidance most recently in 2015, and it may issue further guidance following this most recent Supreme Court decision. They've not done so as of right now, but I know that they've been looking at ways that they can further assist workplaces in weaving their way through all of this.

But under the Pregnancy Discrimination Act, companies that offer health insurance are under no obligation to provide abortion services except when the life of the mother is at risk. And while there's no requirement to provide this coverage is also no federal prohibition of doing so really, an employer can decide if this is something they want to do, they can offer it, and they've not prohibited them doing so since medical medically sensitive information is involved. Everybody, what's that thing we got to sign when we go to the doctor's office? The HIPAA violation companies reviewing policies around the sensitive area will also have to consider the Health Insurance and Portability and Accountability Act. So again, another piece of legislation and employers will need to continue navigating not just the federal guidelines I've discussed, but local state and federal laws and regulations regarding reproductive care. It's a mouthful, but it's life.

Amber Clayton: It is. And we're going to go into this a little bit more into detail around the health and the benefits piece of it because that has been a hot topic of conversation is what are employers doing with regards to their benefits as it relates to this decision? And so I appreciate the overview from both of you. And now let's just kind of talk about the layers. The layers that one might expect and the decisions that employers are making as far as taking a position to implementation of new benefits or removing benefits. And all of these things can have a really big impact on talent acquisition and retention, something that many employers are struggling with today. And so I wanted to start first with the travel benefits piece of it. We did some research. The SHRM Research Institute surveyed a nationally representative sample of 1,003 HR professionals, and this was from May to June.

And it was shortly before the Supreme Court's widely anticipated ruling and after the draft of the decision had been leaked to the press in early May. And in the survey, they were asked to name the top six resources or benefits that employers do not currently offer but are thinking of offering to better support abortion access and reproductive care.

And one of them was travel benefits. There was 6% indicated that they may consider offering travel expense benefits that would include things like gasoline, airfare, hotels, anything outside of a health savings account for employees so that they can access reproductive services that are not accessible in their state of residence. And this happens to be one of the questions that we started getting in the knowledge center shortly after the decision was made. Can we provide travel benefits to employees who go out of state to receive an abortion? And we know this one is complex, we provide guidance on it and resources of course, from the knowledge center advisors, and we're not attorneys. So this is why we have Janell and you come on board, Emily. So Janell, what are you hearing from your clients? What kind of questions are you getting around this particular topic?

Janell Stanton: Yeah, so this is first and foremost our firm, just like you guys in the knowledge center have, we've been answering this question for our clients several times a week, I would say. And these conversations started back in May with the leak to the decision as well. I think that our clients really quickly realized the gravity of this issue for their employers, and they really wanted to do something about it. So kind of simple answer, can an employer provide travel benefits to their employees? Yes, but there's a lot to weigh with making this decision. And I'm just going to sort of cover a few of those pros and cons. But obviously as everybody knows and all the listeners will know this is because of how complicated this is my response. There's pros and cons and obviously everybody needs to consult with their own benefits counsel or benefit plan administrator before they make these decisions.

And also my answer presumes that there's no state that passes a ban on citizens traveling to another state to receive abortion services. There is some state that are trying to, or are considering these types of bans to prevent their citizenry from traveling to other states to obtain abortions. And I think that any law that would pass that prohibited, that type of travel would face some severe scrutiny even from some of the justices on the conservative side of the Supreme Court, there was a concurring opinion in the Dobbs decision that said, any law that would ban interstate travel would be unconstitutional. So while unlikely, it is something to sort of keep in mind that if a state did pass this type of travel ban, while it might be struck down, it could take a lot of time to when its way through the court process. So just being aware that there could be some consequences of allowing or helping employees travel to other states as well.

Those do not exist. No, but that could change. So one thing that a lot of my clients are wanting to do or are working through the process of is offering a travel reimbursement that's outside of any health plan. So this would be just paying for travel expenses as they arise, that would be potentially separate from any other type of health plan. And the benefit there is that it helps companies avoid the complexities of ERISA, COBRA, HIPAA, other types of laws that kind of come into play once you've created a health plan. And this would just be an employee who needs to travel out of state to receive medical care, including an abortion. The employer would cover those travel expenses. A lot of companies came out and said they were going to cover these types of costs. Dick's Sporting Goods, for example, which I'm a big fan of, I love Dick's Sporting Good.

They're offering to pay $4,000 of employee of travel expenses, so that's a huge positive. You've taken it outside of the health plan language and requirements, but there's a few things that's right for abuse. An employee could take potentially that leave for any or get those expenses covered for any reason. And if the employer is willing to take a hands-off approach and not ask questions of an employee as to why they're taking these travel expenses or why they're seeking this reimbursement that could cause issues, employers could put a camp on that expense, cover a specific amount of costs. I think that there is still risk that this type of arrangement could be considered a health plan subject to those federal laws. So before you would implement a travel reimbursement plan that really should be highly scrutinized.

Amber Clayton: Yeah, I mean is the recommendation, and maybe it's not a recommendation, but that the employers, as you mentioned, not specifically state that this is a benefit to obtain an abortion out of state, but rather this is a travel expense that could be used for anything.

Janell Stanton: Right. Yeah, that is definitely something that employers would want to consider because if you are providing this benefit to employees, you have a lot of things to consider with that. You have, as Emily was talking about, Title VII and Anti-discrimination Laws. You have the Mental Health Parity Acts. So if you provide certain benefits for treatment, you want to make sure that you're not violating that law by not providing travel expenses for folks who may need to seek out of state mental health treatment. So yes, it is a big, big benefit of this is that employers don't have to request the reason that an employee is seeking that type of reimbursement and can also give some plausible deniability in these states with these aiding and abetting abortion laws, which I know we're going to talk about in a little bit here as well.

Emily M. Dicken...: So Amber, I think that's a great place to add that. I think we talk a lot about culture at SHRM and workplace culture is so important, and your culture takes into account who is in your workplace and the needs of those people as well. And so if you've got a workplace where the majority of employees are not childbearing age, this is not an issue that may be important to them. But if you've got a workplace that has, because of the nature of the work, having mental health issues and really dependent on those resources, having this travel benefit in place focuses maybe more so on that. And so what I always tell people is, let's figure out what the issue is that impacts the most people in your organization and whatever that solution is, make it work for everyone. So again, having this benefit of a travel benefit can help in so many ways.

You think about the number of cancer treatment centers that exist in, you want to go to that one, right? That one that's in Houston or that one that's in Carolina and you live here in DC, right? That's costly. And if there's an opportunity to cover those costs as well. So I think, I don't want us to just look at that benefit and other benefits that we may discuss with the smaller lens. Think about it, about how does it impact the culture and how many more people are impacted just by you being able to offer that benefit. If you're going in there and saying, you're just offering it because of this one issue today, there will be people that say, but what about me? And that I think it's so important, and I know we'll talk about other issues, but you've got to know who the people who work for you are and what's important to them.

And there's so many ways to identify that of course. But I think culture is so crucial to take into account and you got to know where you are. If you're in West Virginia, let's talk about politics and policy and that this may not be something that your employees care about it all. Then do you bring it up within with that lens? Just you've got to be honest, you've got to know your place, know where you are and know what the cultural foundations are for the people who work for you and for your organization. If you've been an organization that's always been out front on these types of issues, then it makes so much sense for you to lead with it in this manner. But if you are just taking those baby steps here, find out what's most important to your people first.

Amber Clayton: Yeah, that's a really good point Emily. And we talk often about benefits and how important they are to employers in order to attract candidates and to employment and to retain employees. And it's never really a one size fits all. You really have to know your audience, your people, and what types of benefits would be beneficial for them. And oftentimes, you have to survey those employees to find out what it is that they're looking for. As you said, somebody who is not a childbearing age or maybe the dependent care account doesn't matter to them, but maybe they want to have a gym pass. I don't know. I'm not saying anything negative about that generation, but there's differences in what people are looking for and I think it's really important.

Janell Stanton: I did want to mention too, kind of piggyback off what Emily had said about your workplace. You also have to consider, you may have a contingency of part-time employees or seasonal employees, other employees that may not be eligible for your group health plan. So adopting benefits, a travel reimbursement policy that's separate from a group health plan, you could actually reach more of your employees that wouldn't otherwise be eligible to participate in a group health and by adopting a travel reimbursement policy.

Amber Clayton: Yeah, that's a great point.

Emily M. Dicken...: That is. And one other thing I'm going to say is the size of the business manners. So we have a lot of businesses that would love to be able to offer this benefit, but they could be choosing between this and something else because there is no new money to do this with. And so unfortunately, we hear often about the big businesses who make a splash about offering these types of benefits. And it is of course to recruit and retain. I think that there's a part of it is that, and then a part of it is ESG and other things, right? But let's not assume because a business is not offering this that they don't want to. But if you're a small or midsize business and you've really put together a suite of reproductive offerings within your benefits package that are affordable to both the employer and the employee, we talk about a lot of that in our workplace healthcare policy pillar, how important it is for it to be affordable to both employee and employer.

And if you're unable to take on this additional expense, we shouldn't make it seem like it's not something you would want to do. What you've done is you've taken in the size and the culture of your organization, and you've prioritized those things that are most needed and you're funding those things.

Amber Clayton: Great points. So Janell, just going back on something you mentioned earlier, you mentioned aiding and abetting. Can you tell us a little bit about that and the trigger laws? I know we've heard the term trigger laws and some people may not be aware of what those are.

Janell Stanton: Yeah, absolutely. So I think contrary to popular belief, overturning the decision in Roe versus Wade did not automatically outlaw abortions. The practical impact of the Dobbs decision is that states are now empowered to decide whether an abortion procedure is lawful within the confines of their particular state. And 13 states in the US had passed these so-called trigger laws, which were written in a way so that an automatic trigger, meaning overturning Roe, would cause the abortion ban to automatically go into effect. And some of these trigger laws were immediate. Some went into effect a certain number of days after Roe is overturned, but they were passed to preemptively be prepared such that if Roe was overturned, abortion will be outlawed in that state. And these trigger laws, they do not impact employers in every state. There are some state that has pass laws which criminalized individuals, and this is what we're talking about, this aiding and abetting abortion.

So individual employers who help an employee obtain an abortion depending on the state law, could be criminally prosecuted under the guise of these statutes. And again, depending on the state actions like prescribing abort efficient drugs, driving an individual to an abortion clinic out of state and for providers performing the abortion, these are all things that could be considered aiding and abetting and abortion. So understandably, these laws and the likelihood that other states may pass identical versions of these laws is giving employers in these states some trepidation about what they're going to do here, especially regarding these travel benefits.

So like you're talking about, and Emily said some of these big employers, they're coming out, they're making a splash, they're saying, we're going to do this, we're going to offer that. And I think it's really important for companies to understand that there could be risk in that. So where one of these large companies like Dick's Sporting Goods, Lift Leader, Walmart, where they're making public comment about this, smaller companies may not be willing to test the waters of litigating one of these types of claims or subjecting themselves to criminal liability where other companies may have funds in place to test these waters. And bottom line really is it comes down to each company and determining be its litigation.

Amber Clayton: Well, just out of curiosity, Janell, these trigger laws, are they specific to abortion or are there trigger laws for other laws as well?

Janell Stanton: Yeah, that's a great question. So I'm not aware off the top of my head if there are other trigger laws in place, I would assume that these are things that could be passed. For example, I know that a lot of the legal scholars came out after the Dobbs decision and thought that other decisions could be on the line now. So states may pass trigger laws that would ban same sex marriage in the event that the Buster decision is overturned. But I'm not off the top of my head familiar with other similar trigger laws.

Amber Clayton: Thank you. So let's jump into health insurance and the health savings account. We talked a little bit about this in our research. We found that organizations that currently make employer contributions to employee's health savings accounts, they've responded as follows. Most organizations, 87% would not change their contributions to employee's HSAs, 10% would consider increasing their employer contributions. And this of course is based on this decision of Roe v. Wade and 3% would consider decreasing their employer contributions. So I know that in some insurance plans, HSA plans, they cover travel expenses to receive reproductive care in another state. To your knowledge, does that include abortions? I know we talked about Title VII, and I thought that was really interesting what you said, Emily, about Title VII and abortions because I don't think many people know that would fall under pregnancy discrimination. And we do get a lot of questions around the Pregnancy Discrimination Act and the knowledge center and what that means for employers and employees. So I find that very interesting. But do you feel like it's based on plan or when they say reproductive care, does that automatically include abortions?

Janell Stanton: Yeah, so the answer is, again, it does depend on the plan, but it is really common for group health plans to cover travel benefits. And even if they are related to abortions, a lot of plans automatically cover that. Now, plans many times are written so that those services are covered. If abortion is legal, where the service is to be provided. And with when Roe stood, it was federally protected, right? But with overturning a Roe and now abortion being illegal in certain states, it possible that group health that may have covered services previously may have to modify those in the particular state.

Amber Clayton: Got it. So if someone were to... Let's say, decrease their employer contribution or remove it from their plans, given what we know about Title VII, do you think that someone could claim that it's discrimination? Do you think you'll see cases like that?

Janell Stanton: Yeah, so this is a great question, and I could go either way on this one. So I think that the answer really depends on why did the employer choose to reduce or remove the benefit related to abortion services. So was it in response to a specific employees use of the benefits? I think in that situation, you could have a violation of anti-discrimination laws because then the employer has treated that employee differently because they had an abortion, which again would violate that discrimination or PDA. But then you also have in Title VII, which again is Emily said, prohibits discrimination on the basis of sex in a number of other protected classes. Title VII specifically states that the law does not require that an employer paid for health insurance benefits for abortion except where the life of the mother is in jeopardy or where medical conditions have arisen from an abortion.

So since it's not discriminatory to not provide insurance benefits for an abortion in the first place, I mean it could be a long road for an employee to think that the employer then is responsible for discrimination for removing any existing benefits. But I'd want to know why they made that decision. And again, if it was in response to specific individuals obtaining an abortion using those particular benefits, I think there is the possibility that they could open themselves up to a discrimination claim.

Amber Clayton: Wow. Again, that I think this is all really good information for employers to know, especially when they're deciding on these benefits. So let's talk paid leave, Emily, we've heard people talking about transportation benefits, but what kind of paid leave benefits do you currently see being adopted by the businesses and why do you think a company would offer them?

Emily M. Dicken...: So SHRM research shows that over half of employers, 55% now offer paid maternity leave, 45% offer paid paternity leave and 35% provide paid extended family care lead. And I think that one is actually really critical as we talk about dependent care, especially post-COVID. Offering paid leaves tends to have strategic benefits as including the ability to attract talent. 58% say that's one, retention 55% say that's the key employee health and wellness, 61% point to that being an issue and employee engagement, which is also high at 60%. Now, some states, as have instituted their own paid leave mandates such as California, New Jersey and New York, and these state mandates now have ripple effects on employer offerings throughout the nation. Currently 11 states and DC have enacted paid family leave programs. And so I will just say this, during COVID and kind of post return to office period, we learned that many women had left the workplace and were not returning to the workplace because of child dependent care.

We're also seeing that there's more of a dependent care issue as opposed to a childcare issue. We're seeing more of that as well. And so paid leave and the ability to be able to use it no matter what and for whatever it is, I think is important. I think one other thing we want to mention, you don't hear a lot about this is open leave because as you know at SHRM, we decided in January of 2019 to offer that. And so then you don't have to tell anyone why you're taking your leave. You just are requesting paid leave. You're getting with your manager and saying, I need this time ensuring that there's coverage and that your team will be able to cover if it's an extended period of time. But I would also say that there are other ways that we can look at providing paid leave that aren't necessarily titled paid leave.

Amber Clayton: Yeah, absolutely. I mean, that's one of the things that we get questions about in the knowledge center is can I ask my employee why they're taking their leave? Can I confirm that they are in fact sick or that they are going to get a medical appointment, things of that nature. And I do find that open leave is as you said, great, because you don't really have to say you've got this opportunity to be able to take the time that you need for the reason that you need it. And I think that's great.

Emily M. Dicken...: And I'll also say this, many of us, including you and me, we're people managers. And what I've found this often I have to tell people TMI, because people are not out here trying to just take leave and to be sheisty with it. They're really, I found employees really have the time, don't want to have to take it, especially for certain issues. But I think it's important when you talk about your culture that people feel comfortable saying to you, I've got this situation. We've got staff who are saying, because now remote work is an option and such a big option. You've got staff now saying, look, I need this time to deal with this issue, but I'll work remotely as well. But they also have the option of open leave and sometimes you got to talk them into taking the open leave, you're going to get paid anyway, right?

But I've noticed you just got to say, "Look, handle this situation. I don't want you spending eight hours trying to handle this situation in the next eight hours in that same day trying to handle work for us. Take the lead, do what you need to do. And you don't necessarily have to tell me every little thing that's going on." But it is great as a people manager to have those relationships where you can actually talk through with the individual what the need is for the lead and figure out what the best solution is for them.

Amber Clayton: Boy, this is like a repeat of a conversation I just had with Alex recently, my boss about leaves that I've been taking. And I'm actually one of those people that's probably TMI. I do share, I'm a share sometimes maybe a little bit too much, but I do share the reasons why, even though I'm not being asked why so...

Emily M. Dicken...: And I don't want people to feel bad because I think that says a lot about the people manager and the organization where people feel comfortable sharing. I just don't want people who are typically introverts or very private to feel like you have to. And that's important when you talk about something like what we're talking about today. You don't know for whatever reason why this person finds himself in a situation to have to get this medical support. But if they feel comfortable enough to say to you, I think as our colleague Janell said earlier, then they can't hold it against them and decide to change what you provide in terms of a resource of benefit because you disagree with them and the choice they're making.

Amber Clayton: Absolutely. Now, I know that our research didn't specifically talk about paid leave for abortions, but Janell, can they do that? I mean, we talked about the transportation benefits. We know that they can provide that. Can employers provide specific paid leave for abortions?

Janell Stanton: Yeah, absolutely they can. And I think it's a great solution for a lot of companies who might be smaller, can't afford to change their benefits or offer these other travel expenses, expanding the uses of paid time off for employees. There's several benefit to that option. And what Emily was saying, you don't have to ask the reason that the employee is using their PTO. And I think that that is beneficial from privacy standpoint, from again, helping avoid possible liability under aiding and abetting laws. But it's a great way to attract candidates, attract and retain your employees. Individuals might again be eligible for PTO when they aren't eligible for other types of your group health plan or other types of more formal benefits. I also think that companies that are expanding these policies, they should be mindful of that if they are going to provide paid leave to an employee to obtain an abortion, that they also allow individuals to use that benefit for if they have their own temporary illness, other types of family obligations.

Equally, amongst the sexist, if there are people who are wanting to use PTO to receive gender affirming care, for example, in another state where it might be banned or outlawed in a particular state, you want to make sure that you're applying that equally. And I love the open leave idea because most companies, you have a cap on PTO or vacation your leave that you do have. And if you have that cap, an employee is much less likely to, they're not going to take advantage and be using weeks and weeks and weeks of PTO. You have a cap on that. And even if you are a company that provides unlimited PTO, employees are still required to meet their performance metrics. So I think that this concern that there's this huge potential for employee abuse of openly is very low in reality. And I highly encourage this option for employers, especially those that don't want to make these big public statements, don't have the financial ability to provide thousands of dollars of travel expense reimbursement. I do think it's a wonderful sort of middle of the road option.

Amber Clayton: I had seen some research before, it's been a while, but it was just on that same very topic that people are less inclined to take even the vacation that they would typically earn in a PTO plan or a separated vacation or sick leave bank when it comes to unlimited PTO. So I know employers do tend to get worried that someone's going to abuse it, but majority of people. So thank you for bringing home that point.

Emily M. Dicken...: And Amber, again, I always talk about this people manager perspective. That person is the person that really controls what your experience is like in the workplace. And so for those of you who are people managers, if you find someone who is abusing it, right, then you've got to address that as quickly as possible. We've seen, even with remote work where people have seen abuse, they immediately say, we're just going to stop. And the benefit for everyone, no. Again, like we've said at SHRM, if it's a Friday remote day and we can't find you, then that issue is a performance issue and handle it that way. And don't blame everyone else, don't have everyone else feel the impact of changing the policy just because of a few bad apples. There are a few bad apples everywhere. It's just as a people manager and organization, you got to hold those people accountable. And I think that also helps. So with any new benefit, just people accountable who are abusing the benefits so that you're not taking away something important for others.

Amber Clayton: Yeah, absolutely. Speaking of abuse, it kind of leads me into my next question. In the knowledge center, our top questions typically revolve around the Family Medical Leave Act as well as compensation. And when you mentioned abuse, we get a lot of questions around FMLA abuse. So this triggered my next question of, would an abortion qualify for FMLA leave or leave under the Americans with Disabilities Act? We have an answer for that yet, Janell.

Janell Stanton: Yeah. So do we have a definitive answer from the Department of Labor yet? No. But possibly in the coming days or weeks, months, we may get one. But I think that under the framework of the FMLA as it currently stands, an employee receiving abortion definitely could be eligible for the FMLA leave. So if we kind of take it back to HR 101, FMLA leave is available to employees if they have a serious health condition and serious health condition and includes an illness, injury impairment, or physical or mental condition that involves either inpatient care or continuing treatment by a healthcare provider. So couple of things to think about. First of all, if your company is a company that seeks medical certification from an employee who makes a request for FMLA leave and that employee's, provider or physician certifies that the employee has a qualifying serious health condition, I say go with that.

That locks it up and proceed accordingly. But thinking about if there's complications from an abortion procedure. Now, abortions are safe in most instances, but there can be complications from that. It's possible an individual may need to stay in the hospital overnight, which could satisfy the inpatient care requirements. There's also, if the employee needs additional follow up, recuperation time, things like that. That situation could satisfy the requirement that there be continuing treatment by a healthcare provider. So there are also situations where if an employee receives an abortion, it follows a normal course, maybe it takes a couple of hours and they don't have any downtime, they're not hospitalized. It's also possible it may not qualify, but I think there's more questions here than answers. And for an employer, they should just rely on those processes they already have in place for any other type of FMLA leave.

And as for the ADA, pregnancy on its own is not considered disability. So just because you're pregnant, you don't automatically have a disability under the ADA though, I would say there are lots of things that can... Lots of conditions that a pregnant person can experience that would give them a pregnancy related disability. Just remembering that a disability under the ADA defined as a physical or mental impairment that substantially limits one or more of the major life activities of that individual. So like I said, it's very possible that someone could have a pregnancy related disability that would entitle them to a reasonable accommodation under the ADA. And in the situation that we're discussing travel to receive an abortion that might be considered a reasonable accommodation under the ADA. So I do think it's a good idea for an employer to engage in that interactive process. Again, HR 101, going back, dusting off that ADA interactive process and exploring whether that employee does have a pregnancy related disability, getting medical certification where necessary and see if ADA protective leave is an accommodation that can be provided.

Amber Clayton: I love when you say ADA 101 and Emily mentioned Civics 101. I was terrible at civics in high school. I did not like my teacher when you said that. I just made me think of Ms. Marshall.

Emily M. Dicken...: Three branches of government.

Amber Clayton: I was going to mention some other research that we have, but I think it would be great if our listeners would go to shrm.org to take a look at our research because we do have research that talks about some of the other support that employers are providing with regards to abortion, reproductive rights, travel expenses, et cetera. So yeah, shrm.org for that. And I know we're coming close to the end of the show just for either one of you. What if an employee has an issue with an employer's decision based on their religious beliefs or they begin to share their opinions with others in the workplace? How should an employer address that? We're talking about, we talk about the difficult conversations in the workplace all the time. So this is probably going to be one of those.

Emily M. Dicken...: And look, I think it respect is so important in this, and again, it goes back to the organization's culture. If you've got a culture where you are promoting transparency and having open conversations for HR professionals because of where they sit at this intersection of work, worker and workplace, it's just so important to ensure that everyone's voice is considered. And whether you agree or disagree that there is respect. We've been talking about civility in the workplace at SHRM for a long time. We're coming up on National Vote Day. And civility in the workplace as it relates to politics is a big thing. But at this thing, civility in the workplace as it relates to anything is important. And we've got four key recommendations when we've been talking about creating a more civil work environment. Should you disagree with the employer, one facilitates civil conversations, commit to the conversations, help the business leaders and workers get in the right mindset.

Talk about a we attitude and set the stage at the beginning. Listen to understand sometimes rather than to solve, minimized toxic conflict, right? Conflict resolution is so important, and you want to quash disagreements or debate when it becomes toxic and recognize when healthy debate is devolving into negative conflicts. So again, I talk a lot about people managers, but they've got to be aware of this. Leadership and accountability is something I also said to you earlier. Hire people who conduct themselves with civility and hold people accountable regardless of their position, so that's from the CEO all the way down. Accountability is so critical in the workplace. And then lastly, I'll say respecting political differences. Yes, the health issue, but as we all know, it has become a political issue as well. And I think you don't exclude political differences as part of your diversity and inclusion instruction. You must include it. Acknowledge that political disagreements and conversations are inevitable. Provide employees with guidance on civil conversations and take the opportunity to facilitate and put the guardrails up for these conversations.

Amber Clayton: Absolutely. It reminds me of a part of the People Manager Qualification, the SHRM PMQ that actually discusses this. I think there was a scenario that was involved with someone who had varying opinions on, I believe it might have been a bumper sticker. I don't know right off hand, but great. It's a great certification PMQ. If you have not seen it, I would definitely recommend going to shrm.org taking a look at the people manager qualification. And Janell, for you, how about this? I know from a legal standpoint, what else do you see as far as how employers should or should not address things?

Janell Stanton: Sure. And these issues have been coming up for eons now, right? There's always some type of political hot button issue that's going on. Couple of things just from a legal standpoint that I would advise employers to keep in mind are the company's obligations under the National Labor Relations Act, employees are free to engage in protected concerted activity and discuss the terms and conditions of their workplace. So depending on what the employee is talking about or what opinions they're sharing, it's possible that their comments may be protected under the National Labor Relations Act and to discipline them, or that could be retaliation on the basis of them engaging in protected activities. So just be aware that employees do have the right to discuss those things. But big issue that we've also seen here at the firm is employees who are wearing t-shirts or putting up posters or otherwise expressing their opinions that way, look to your company's dress code.

Are there any guidelines about whether employees are permitted to wear this clothing? I know for example, the Black Lives Matter movement, individuals were wearing Black Lives Matter pins or hats, but then others were wearing things that said Blue Lives Matter, and it was creating a lot of conflict in workplaces. So look at your dress code and then stability is what Emily was discussing. Look at your anti-bullying policies if you have them. If you don't have them, put them in place, we should be able to talk about our differences in the workplace. But there could be a situation where it does arise to the level of bullying, or if an individual does have an abortion and chooses to share that information, making sure that they are protected from bullying, from harassment or other types of discrimination as well. But then as in all things, equal application of your policies, making sure that you don't ban pro-choice regalia, but allow pro-life regalia. So just making things as equal and even application as possible.

Amber Clayton: Great. Thank you very much. Before we end our show, anything else you'd like to add that maybe we didn't hit on. I feel like we've hit on quite a bit.

Janell Stanton: Talk to benefit council. Talk to your benefits council, before you take steps to modify anything, you want to make sure that any plans you do put in place that you're not inadvertently creating a health plan that is governed by the ACA, ERISA, COBRA, HIPAA, that sort of thing. That would be my lingering last piece of advice.

Emily M. Dicken...: And I would say, again, it is important that your people managers are really informed on what the company is trying to do and the messaging of the company and why they're messaging, how they're doing and what they choose to do so that they're able to communicate that transparently to employees.

Amber Clayton: Great. And with that, we've come to the end of our show. We know that this is an evolving topic, and I'm sure there'll be more questions in the future. And for our listeners who are members of SHRM, you can find resources specific to this topic on shrm.org. You can also contact SHRM Knowledge Center and ask one of our HR advisors for assistance at shrm.org/hrhelp. And I just want to thank you again, Emily and Janell for taking part in this episode. It's been wonderful and very knowledge sharing. It's been great.

Janell Stanton: Thank you, Amber.

Emily M. Dicken...: Thank you, Amber.

Amber Clayton: And for our listeners, this podcast is approved to provide recertification, PDCs. After you've listened, you can enter this activity ID. It is 23-Q7MVM. That's 23-Q7MVM, and that's for the recertification PDCs that you would input into your SHRM certification portal. And if you haven't already, please subscribe. So you'll never miss an episode. And be sure to rate and review the show wherever you listen to podcast. Feel free to reach out to me. You can find me on Twitter. I'm also a LinkedIn. And if you'd like to learn more about the Honest HR Podcast about myself or the other host, or to get additional information and resources on what was discussed in today's episode, head on over to shrm.org/honesthr. To learn more about other SHRM Podcasts, check out shrm.org/podcast. Thanks again for joining us on Honest HR.

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