Spotting issues for employers in a post-Roe era | BakerHotelier

Unless you’ve shut down all media of all kinds in the past few days, you saw that on June 24 the Supreme Court of the United States ruled in a 5 to 4 opinion that Roe vs. Wade — a nearly 50-year-old Supreme Court opinion granting the right to 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). Regardless of whether an employer agrees with the opinion, there is no denying that employers should be prepared for issues that may arise in the workplace as a result of the ruling. In this article, we offer some steps for employers to consider as they enter a post-Roe era.

Check your policies

  • Activities outside of work – Remember that many states have rules regarding lawful activities that take place outside of work, whether or not an employer supports those activities, so be sure not to restrict lawful activities off work in policies or in how you apply certain Strategies.
  • Anti-Bullying – Embrace the concept that employees don’t have to agree with their colleagues, but they should treat them with respect and professionalism.
  • Anti-harassment/-discrimination – Make sure your policies are up-to-date to include all protected classes (including federal, state, and local levels) and provide examples of how harassment can manifest (for example, outside the office, jokes, comments on current events, texts, social networks).
  • Dress code – Make sure your dress code clearly states whether employees are allowed to wear clothing, pins, hats, etc. that include political messages in the workplace, but craft the policy in a way that does not involve any National Labor Relations Board (NLRB) or rights protected by Title VII.
  • NLRB – Remember that the NLRB, especially now that it is backed by a Democratic administration, protects the right of employees to discuss the terms and conditions of their workplace. You should consult with an attorney to understand whether you are able to restrict speech or actions related to working conditions.
  • Reasonable Accommodation/Leave of Absence/Family and Medical Leave Act – Policies should clearly state when a person is permitted to take leave or be otherwise accommodated for certain disabilities and pregnancy or pregnancy-related issues, as well as as the steps necessary to make such a request.
  • Relocation – Some employees may wish to relocate permanently or for a certain period of time in order to obtain an abortion; thus, employers must ensure that their policies are up to date to avoid a scenario where decisions are made on a case-by-case basis (which could lead to discrimination complaints) and that each policy must be clear and applied consistently .
  • Social Media – Let employees know that any opinions they share on social media should make it clear that they are not being expressed on behalf of the company; also reinforce the idea that employees cannot make public statements on behalf of the company without permission from the necessary parties.

Keep your ear to the ground

  • Managers and supervisors need to be vigilant about what they hear from their teams – for example, someone making a comment about someone’s religion, race or pregnancy under the auspices of a discussion on abortion can be or become harassing and/or discriminatory, and best not discussed at work to avoid it reaching the level of harassment/discrimination.

Think before acting

  • Even well-meaning statements and policies can have legal repercussions, so an employer must weigh making such a statement or adopting such a policy with the reactions employees may have against them versus saying nothing. at all.
  • There are state laws that criminalize aiding and abetting an abortion, which may or may not include payment for out-of-state travel. It remains to be seen how these laws will play out and whether they will be enforceable, especially against state employers.
  • States enact and/or promise to enact new laws every day, which can complicate an employer’s plan to provide certain benefits.
  • The threat of additional laws weighs heavily. These are not just laws prohibiting abortions, but laws aimed specifically at preventing employers from providing the means for an abortion, allowing boards and executives to be prosecuted, allowing the withdrawal of business licenses, etc
  • Even if employers find a way to frame their policies to potentially avoid state anti-abortion laws, they may violate anti-discrimination laws, depending on the policies and the implications (e.g. granting additional leave only to women) .
  • A statement of opinion can provoke negative reactions from employees and lead to complaints about a work environment that is hostile to women or based on religion.
  • If employers speak out on this issue, employees might expect comment on all issues.

Final Thoughts

Just as employers have had to carefully consider and act on #MeToo issues, the global COVID-19 pandemic, social justice and diversity initiatives, remote working arrangements, the great quit and talent war, and what might be on the horizon for the economy, they must now carefully consider and act on it Dobbs decision. This article is not intended to cover all the labor and employment issues that will arise from this decision, but rather to provide points for reflection for employers as they plan for a new era.

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