On Monday, July 11, 2022, the secretary of Health and Human Services (HHS) issued a letter to healthcare providers regarding the Emergency Medical Treatment and Active Labor Act (EMTALA), indicating that when a state law prohibits abortion and does not provide an exception that aligns with EMTALA’s emergency medical condition definition, that state law is preempted.
Florida Reexamines Abortion Rights Under Its State Constitution Post-Dobbs
According to statistics published in U.S. News & World Report, Florida has the fifth-highest rate of abortions performed per 1,000 women among all 50 states, and it trails only California and New York in the actual number of abortions performed annually. In an effort to reduce those numbers – and in anticipation of the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization – the Florida legislature passed House Bill 5, which Governor Ron DeSantis signed into law on April 14.
Office for Civil Rights Provides Guidance: HIPAA Privacy Rule on Disclosures of Information Relating to Reproductive Healthcare
On On June 29, in response to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, the U.S. Department of Health & Human Services Office for Civil Rights (HHS OCR) issued guidance on when entities covered by the Health Insurance Portability and Accountability Act (HIPAA) are permitted to share protected health information (PHI) without a patient’s authorization. HHS OCR focused specifically on disclosures required by law, disclosures for law enforcement purposes and disclosures to avert a serious threat to health or safety – among the few disclosures HIPAA expressly permits without first obtaining patient consent – likely in response to concerns that providers would be required to disclose patients’ impending or recent pregnancy terminations (spontaneous or otherwise) to law enforcement in states where abortions are banned or significantly restricted.
Group Health Plan Considerations Post-Dobbs
The U.S. Supreme Court’s recent decision in Dobbs v. Jackson Women’s Health Organization has presented many issues for sponsors of group health plans to contemplate as they decide whether and how to proceed with the offering and administration of abortion services.
While each group health plan sponsor will need to consider its own objectives, plan populations and tolerance for risk, the following list identifies factors that sponsors should address before taking any definitive action:
Issue Spotting for Employers in a Post-Roe Era
On June 24, 2022, the U.S. Supreme Court held in a 5-1-3 opinion that Roe v. Wade – a nearly 50-year-old Supreme Court opinion providing the right to an abortion in this country – should be overturned. See Dobbs v. Jackson Women’s Health Organization (available at www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf). Irrespective of whether an employer agrees with the opinion, there is no denying that employers must prepare for issues that may arise in the workplace as a result of the decision. In this article, we provide a few action items for employers to consider as they enter a post-Roe era.
Read the full alert here.
At the Crossroads of Politics, Religion and Social Justice, Employers Face Difficult Choices
A closely divided Supreme Court, a reversal of long-standing precedent, headline-grabbing litigation and an increased assertion of religious liberty rights by employees have thrust employers into an unprecedented and extraordinarily difficult social and legal environment following the Court’s decision in Dobbs v. Jackson Women’s Health Organization.
Many employees wonder what their employers will do in the face of Dobbs and have begun asking their employers what their intentions are in terms of offering employees reproductive care benefits and other assistance in obtaining such services. Indeed, employers themselves wonder what they can do.
Unfortunately, from a legal perspective, employers have few clear answers in these early days following the Dobbs decision. Much is in flux. Old state laws are being asserted as criminal bars to abortion in certain states. New judicial decisions are enjoining the enforcement of some of these laws. Other states are moving to implement new bans. President Joseph Biden has suggested the need for congressional action to restore abortion rights as a federal matter and the removal of the filibuster, if necessary, to do so. In short, the current legal environment is unstable and uncertain.
In such an environment, the most prudent practice from a strictly legal perspective may be to wait and see how the legal developments play out before implementing any new policies, while simultaneously evaluating whether existing employer policies, which were not subject to question prior to Dobbs, now run afoul of certain state laws.
Adding to this complexity, the past two years also have seen an increased focus on employees’ religious liberty rights, such as through seeking exemptions from compliance with COVID-19 vaccination policies and in the context of another recent Supreme Court decision, Kennedy v. Bremerton School District, in which a high school football coach successfully appealed, on religious liberty grounds, his termination for praying following football games. Although Kennedy involved a public employer, that case, along with all the media attention that surrounded vaccine mandates, will no doubt elevate employees’ awareness of their potential religious liberty rights. Given that the abortion debate often involves religious overtones, it is easy to see how Dobbs and religious liberty considerations may be conflated in the eyes of some employees.
Absent decisive federal action, the answers to legal questions surrounding these issues can be determined only on a state-by-state basis. One state in which many national employers do business – Texas – highlights the potential difficulty in taking affirmative steps in the employment context. For example, as employers contemplate whether they will provide health insurance and employee benefits coverage for abortion or offer assistance to employees who travel to other jurisdictions to obtain abortions, in addition to the complex employee benefits law, privacy law and criminal law considerations associated with such actions, employers should also consider the potential for claims by employees who either object to such assistance on religious or other grounds or take action to stop the implementation of an assistance policy using the civil liability provisions of the Texas statute.
Texas’ so-called heartbeat law places extensive restrictions on obtaining and assisting others in obtaining abortions. It also places the enforcement of the law in the hands of private individuals and offers monetary awards to those who pursue claims against anyone who, among other things, “aids or abets the performance or inducement of an abortion; including paying for or reimbursing the costs of an abortion through insurance or otherwise.”
More specifically, the Texas law permits a prevailing claimant to receive “injunctive relief sufficient to prevent the defendant from violating” the statute or from “engaging in acts that aid or abet violations” of the statute. It also permits statutory damages “of not less than $10,000 … for each abortion performed or induced in violation of this subchapter that the defendant aided or abetted.” The Texas law also allows the claimant to receive “costs and attorney’s fees”; however, this provision is one-sided, as courts may not award costs or attorney’s fees to “a defendant in an action brought under this section.” The statute then goes on to list seven additional items that do not constitute a defense to such claims. The statute also has a venue provision favorable to the claimant. In short, the statute is extraordinarily favorable to plaintiffs to the point of practically begging litigation.
What might this mean? If employees are asked to assist in developing or administering programs arguably in violation of Texas law, they might refuse to engage in such work either because it would, in their view, violate their religious beliefs or because of concerns that such conduct might violate Texas law. If separated from employment or subject to other adverse employment acts, an employee might sue under Title VII or for relief under Texas’ Sabine Pilot doctrine. Under Sabine Pilot, plaintiffs may bring a claim if (1) they were required to commit an illegal act that carries criminal penalties, (2) they refused to engage in the illegality, (3) they were discharged and (4) the sole reason for their discharge was their refusal to commit the unlawful act.
In the normal employment context, one way around this issue might be to accommodate those individuals who object to the employer policy by not requiring them to assist with the program. However, this traditional approach may not work in this context given the Texas law’s private enforcement mechanisms. As employees of all political stripes have been more active in seeking employer action on issues of social import, some may feel that the Texas statute empowers them to bring claims against their employers even if the employee is not asked to participate in the employer program. Given the strong economic incentives in favor of bringing such claims, it is not inconceivable that post-Dobbs, employer assistance programs will render an employer the target of employee claims.
Instead of bringing finality, Dobbs has created tremendous uncertainty for employees and employers alike. This legal uncertainty requires employers to carefully assess, on a state-by-state basis, whether their policies will subject them to potential employee claims as well as their tolerance for risk.
More will follow as events develop.
Big Changes Coming to Colorado Noncompetition Law
Colorado employers have less than two months to bring their noncompetition restrictions into compliance with HB22-1317, a bill passed by the Colorado Legislature in May 2022.
HB22-1317, also known as the Restrictive Employment Agreements Act (the Act), will significantly change Colorado’s restrictive covenants statute, C.R.S. § 8-2-113, limiting the enforceability of noncompetition and customer nonsolicitation restrictions. Gov. Jared Polis signed the Act on June 8, 2022, making it effective on Aug. 10, 2022. Notably, the new limitations on the ability to enforce noncompetition restrictions are not retroactive.
California Supreme Court Allows Employees to Seek Derivative Penalties for Meal and Rest Break Violations
On May 23, the California Supreme Court issued an opinion that will drastically increase the potential exposure for employers facing meal and rest break class actions. The court, in Naranjo v. Spectrum Security Services, Inc., ruled that employees who are entitled to meal or rest period premiums for denial of compliant meal or rest breaks may now recover derivative waiting time penalties and wage statement penalties previously reserved for nonpayment of traditional wages, such as minimum wage or overtime wages. Here are the key takeaways from the court’s decision:
So Many NY Changes in 2022 – Employers Beware!
New York employers must be aware of several important changes to employment laws that have already come into effect during 2022, those that have imminent effect (with deadlines just around the corner!), and those that are currently being considered by the Legislature. In this post, we highlight some of the latest developments in employment law that New York employers should be prepared for.
Against the Odds: Did a Court of Appeals Just Grant Independent Contractors the Right to Strike and Organize?
On June 4, 1923, jockey Frank Hayes rode 20-1 long shot Sweet Kiss to victory at Belmont Park. While that seems impressive, what made the win even more memorable is that at some point during the race, poor Frank died. He somehow stayed on the horse and ended up in the winner’s circle. Or six feet under it. It was his first (and last) win as a jockey.
Jockeys are in the news again, and we’ve got another surprise finish. But this one has implications far beyond the racetrack.