advertisement
advertisement

What happens to privacy when employers pay for abortions? It’s complicated

As companies introduce abortion-related benefits, they’ll have to contend with a whole new set of workplace privacy issues.

What happens to privacy when employers pay for abortions? It’s complicated
[Photo: davewhitney/Getty Images]

As Americans awaited the Supreme Court’s final decision on Dobbs v. Jackson Women’s Health Organization, a handful of companies took steps to protect abortion access for their employees. Among them were major employers like Starbucks, Apple, and Amazon, who pledged to cover travel costs for workers who were forced to leave the state for abortion care. In the days since the Court’s ruling was announced, other companies have followed their lead, from Disney and Target to JPMorgan Chase, the largest bank in the country.

advertisement
advertisement

With abortion already outlawed in at least seven states, companies are assuming the responsibility of preserving access for their employees, especially if they have significant workforces in states where abortion is banned or soon to be prohibited. But leaving it up to businesses to protect abortion access does raise complicated questions about privacy: What do workers need to disclose to their companies about an incredibly personal decision if they want to take advantage of those benefits? And how much can employers really protect identifying data amid mounting legal challenges?

It’s an issue that was top of mind for Colleen McCreary, the chief people, places, and publicity officer at fintech startup Credit Karma, when she started thinking about how to support employees in advance of the Court’s decision. “The idea that we were going to potentially ask a female employee, or a male employee who is supporting their partner, to go to their manager or even the HR person just felt very uncomfortable,” she says.

Credit Karma already offered benefits to support employees who had to travel for cancer treatments or transplant surgeries, so the company tacked on both abortion services and gender-affirming care in recent months. Since Credit Karma uses a third-party service—the health tech startup Collective Health—to manage its health insurance plans, employees can seek reimbursement for abortion-related travel without discussing it with anyone at the company. (As with many large employers, Credit Karma’s health insurance plan is self-funded, which also gives them more flexibility to provide these benefits, even in states that ban or restrict private insurance coverage of abortion.)

advertisement
advertisement

To assuage employee concerns, companies like Credit Karma have also tried to be more transparent about privacy issues. “I think it’s important to expressly call it out,” McCreary says. “I specifically said: ‘We do not want to put you in an awkward situation, so we have intentionally made sure that this is separate.'”

Several other employers—including Yelp, Patagonia, and Airbnb—have said they are also covering abortion-related expenses through their health plans, so employees will not have to inform the company directly about claims for reimbursement. “Employee privacy and confidentiality was a priority when we were initially discussing how to implement this benefit,” a Yelp spokesperson told Fast Company. “If an employee utilizes this benefit, this will remain strictly confidential between the employee and the insurance provider, and Yelp will not have access to that information.”

Of course none of this ensures total privacy when health insurance is inextricably linked to employment in this country, and nearly half of Americans are covered by employer-sponsored plans. And if employees are worried about the implications of disclosing abortion-related data to an employer—even indirectly, within the confines of a health plan—it’s for good reason: As the legal landscape shifts rapidly, with state lawmakers pursuing legislation that would bar people from traveling to another state for abortion care, it’s not yet clear how these new benefits and policies could open companies up to legal action. One gray area at the moment is whether employers could assume legal culpability in states like Texas and Oklahoma that prohibit helping someone obtain an abortion.

advertisement

“Some employers are beginning to consider: What would happen if we received a subpoena from a prosecutor in our state, requesting employee data, in order to identify employees who might have violated one of these new prohibitions?” says Reece Hirsch, a partner at Morgan Lewis who leads the law firm’s privacy and cybersecurity practice. “And the answers will vary a little bit state to state, because first, you have to have an awareness of exactly what law is alleged to be violated, and what the laws are in that state protecting employee data.”

While HIPAA does protect employee data in a health plan, the same isn’t true of information that a company obtains “in its capacity as an employer,” Hirsch says, such as COVID vaccination records. This may be of greater concern for smaller employers, who are less likely to have a self-funded health plan and may be subject to more stringent rules around what health insurance can legally cover. “Where it’s a bigger issue from a privacy standpoint is with smaller employers,” says employment lawyer Gary Phelan. “They don’t necessarily have third-party administrators when it comes to health insurance.” It’s also not clear how employers would extend abortion-related benefits to contractors who aren’t on the company’s health plan (though at the moment, companies like Google and Amazon have only offered coverage to full-time employees, despite pushback).

Even if an employer exclusively provides abortion-related benefits through their health plan, HIPAA protections don’t necessarily guarantee that companies won’t have to turn over employee data if faced with legal action. “Let’s say an employer group health plan is covering abortion pills and reimbursing those,” Hirsch says. “That information could be subpoenaed, and HIPAA does have exceptions for disclosures to law enforcement authorities and pursuant to subpoenas.”

advertisement

Under some state privacy laws, medical records that document substance abuse or mental health issues are subject to greater protections. As abortion is criminalized in more states, Hirsch says it’s possible lawmakers might try to adopt those protections for reproductive health records, as well. In California and Vermont, a constitutional amendment to protect abortion access will be on the ballot come fall, and it’s possible some blue states may take a cue from Connecticut and draft legislation that would shield people from being punished for crossing state lines to get an abortion.

Whatever happens in the months to come, companies will have to brace themselves for a slew of new challenges, as they balance compliance with evolving abortion laws alongside concerns about employee privacy and state laws that enshrine privacy rights. “The overall takeaway is we’re anticipating there may be a new series of requests or subpoenas submitted to employers over the coming year that will seek some of this reproductive health related information,” Hirsch says. “And there’s no one-size-fits-all answer for how you respond to one of those.”

advertisement
advertisement