BY: Tad T. Roumayah | IN: Employment Law
Many employees understandably have questions and concerns about pregnancy discrimination and abortion-related employment protections, given the U.S. Supreme Court’s controversial decision in Dobbs v. Jackson Women’s Health Organization. In Dobbs, the Court overruled Roe v. Wade, an opinion that had provided a nationwide constitutional right to abortion for almost 50 years.
The Court’s ruling now leaves questions of abortion protections to the individual states and has unleashed a host of issues related to a pregnant employee’s abortion-related employment rights. Although the status of those protections remains unclear in Michigan and other jurisdictions, the following guide addresses some of those important rights.
In 1931, Michigan enacted a law banning abortions in the state, but the prohibition was found unconstitutional, according to Roe v. Wade in 1973. On May 2, 2022, a draft of the Dobbs opinion was leaked to the public, indicating the Court’s intention to overrule Roe. Consequently, as a preemptive action, a Michigan state judge granted a preliminary injunction on May 17, 2022, temporarily blocking the 1931 law’s ban from taking effect. The situation, however, is far from settled as advocates on both sides pursue a permanent outcome for abortion rights in Michigan.
Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees based on race, color, national origin, sex, and religion. In 1978, Congress amended Title VII to include the Pregnancy Discrimination Act (PDA) to prohibit sex discrimination based on pregnancy.
Title VII and the PDA protect a pregnant employee from being fired or subjected to adverse employment action for having or contemplating an abortion. Similarly, Title VII and the PDA protect pregnant employees from firing and other adverse employment actions based on a decision not to have an abortion.
In Michigan, the Elliot-Larsen Civil Rights Act (ELCRA) shields pregnant workers from discrimination. While the ELCRA exempts a “nontherapeutic” abortion from the definition of a protected “medical condition related to pregnancy or childbirth,” the law nevertheless protects pregnant employees from being fired or having other adverse employment actions taken against them where the employee’s abortion was necessary to save the life of the mother.
Various laws come into play when determining whether a pregnant employee may avail herself of the right to legally job-protected medical leave to obtain abortion care. These are the PDA, the ELCRA, the Americans with Disabilities Act (ADA), the Michigan Persons with Disabilities Civil Rights Act (PDCRA), and the Family and Medical Leave Act (FMLA).
Under the PDA (covering employers with at least 15 employees), a pregnant worker is protected if she requires reasonable accommodations related to her pregnancy (including medical leave), but only to the extent that such accommodations are similarly offered to non-pregnant employees. According to the Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Pregnancy Discrimination and Related Issues:
While employers may not force pregnant workers to take leave, they must allow women with physical limitations resulting from pregnancy to take leave on the same terms and conditions as others who are similar in their ability or inability to work. Thus, an employer could not fire a pregnant employee for being absent if her absence fell within the provisions of the employer’s sick leave policy.
In 2009, the Michigan legislature amended ELCRA to clarify that pregnancy accommodation protections mirror those under the federal PDA.
The ADA (which also covers employers with at least 15 employees) does not consider pregnancy alone a protected “disability.” However, pregnancy-related health conditions may be protected.
The ADA deems a pregnancy-related health condition a disability if it substantially limits a major life activity (such as walking, standing, and lifting) or a major bodily function (including operation of the neurological, musculoskeletal, endocrine, and reproductive systems). A health condition’s cause is not relevant in determining whether it constitutes a current disability.
Accordingly, women who require abortion care due to an ADA-protected disability may be entitled to job-protected leave to receive such care. The Michigan PDCRA also protects disabled employees under a definition of “disability” similar to the federal ADA.
The FMLA covered employers with 50 or more employees within a 75-mile radius. Under that statute, employers must provide employees with up to 12 weeks of job-protected leave for an employee’s or an employee’s family member’s “serious health condition,” defined as “an illness, injury, impairment, or physical or mental condition that involves inpatient care… or continuing treatment by a health care provider.” Thus, an employee may be entitled to job-protected FMLA leave if she receives abortion care following her healthcare provider’s determination of an FMLA-qualifying serious health condition.
According to the EEOC’s Guidance, if an employer provides health insurance benefits, the PDA does not require the employer to pay for coverage of abortion unless the life of the mother would be endangered if the fetus were carried to term. If complications arise during an abortion, the health insurance plan must also pay the costs attributable to those complications.
The PDA also makes clear that an employer is not prevented from providing abortion health benefits directly or through a collective bargaining agreement. However, if an employer decides to cover the costs of abortion, it must do so to the same degree that it covers other medical conditions.
In the wake of the Dobbs decision, many employers have stated they will cover employees’ the costs for out-of-state abortions if they work in a state where abortion becomes illegal. Among the companies to make this pledge are Target, Amazon, Bank of America, Bumble, Citigroup, CVS Health, Dicks’ Sporting Goods, Estee Lauder, Goldman Sachs, Hewlett Packard, JP Morgan Chase, Kroger, MasterCard, Meta Platforms, Microsoft, Paramount, Patagonia, Paypal, Salesforce, Starbucks, Uber, Disney, and Zillow.
The legal landscape surrounding abortion rights and protections is rapidly changing in the wake of the U.S. Supreme Court’s landmark Dobbs decision that overturned nearly 50 years of precedent under Roe v. Wade.
Because of ongoing changes in Michigan and nationwide, employees and employers remain uncertain about abortion-related laws and their application. If you or someone you know is pregnant and concerned about workplace rights associated with abortion, the experienced employment attorneys at Sommers Schwartz can help you understand your situation and options, both in and out of court. Contact us today for a confidential consultation.
View all posts byTad T. Roumayah
Tad Roumayah focuses his practice primarily on employment litigation, representing employees who have encountered discrimination, retaliation, wrongful discharge, whistleblower protection claims, wage and hour violations and other employment issues and disputes.