Reproductive Rights: FAQs for Employers in New Jersey | Lowenstein Sandler LLP


GENERAL INFORMATION

  1. Is abortion still legal in NJ?

Yes, abortion is still legal in New Jersey. Abortion is an independent and fundamental right protected by both the New Jersey Constitution and state statutes.[1] The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization does Not Limiting abortion rights and access in New Jersey.

  1. What are the costs for people who want to have an abortion?

Abortion-related medical and non-medical expenses can pose a serious barrier to accessing health care, particularly for low-wage workers in states that prohibit or restrict abortion, who may have to travel long distances to obtain a legal abortion. According to the Henry J. Kaiser Family Foundation, the majority of self-pay first-trimester abortions cost about $600.[2] Associated expenses can include airfare, rental cars, gas, accommodation, meals and childcare, and these costs can be doubled if the patient must travel with a companion. Non-medical expenses can run into thousands of dollars, making abortion unaffordable for many people.[3] The Federal Reserve Board reports that 35% of Americans do not have enough cash, savings, or credit to meet a $400 emergency spending.[4]

POSSIBLE LIABILITY

  1. What kind of legal liability can a New Jersey employer face for paying for employees to travel out of state to New Jersey for abortion treatments?

New Jersey employers considering paying for out-of-state employees traveling to New Jersey for abortion treatment should do so consult a lawyer assess possible legal risks. It remains unclear how states with abortion bans or restrictions (“prohibited states”) will attempt to enforce existing criminal law prohibitions on “aiding and abetting” or otherwise assisting their residents in obtaining abortions, whether prohibitive states will enact laws that support specifically penalizing a patient traveling for an abortion and how courts will respond to the extraterritorial application of such laws. It’s also unclear whether courts will pursue cross-state civil suits under laws purporting to empower individuals to sue those who assist others to have abortions.

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For an overview of state abortion laws, see these resources:

Criminal and civil liability depends on various factors, including the state your employees are located in and whether your company offers a self-insured plan (subject to the federal Employees’ Pension Insurance Act of 1974 known as “ERISA”) ) or a full insurance insured plan governed by state law. An employer providing abortion treatment and medical travel services under an ERISA plan may be less exposed to potential civil lawsuits brought under state law because of ERISA’s broad conflict prevention provisions.[5]

STAFF SUPPORT

  1. What kind of support do employers offer to workers who need to travel for an abortion?

With federal protections for abortions removed, many employers are considering how to help workers living in states where abortion is not available.[6] This unofficial database tracks the responses of some major employers, including company statements and policies on paying travel expenses and providing paid time off.

Employers looking to expand benefits should consult with an employee benefits attorney to learn how best to structure new or expanded employee benefits (eg, medical care, mental health, travel, childcare, paid time off and legal counsel). Employers may also want to seek legal advice on how best to protect the privacy of employees taking advantage of the enhanced benefits.[7]

As a starting point, some employers conduct a self-assessment to determine what health, travel, paid time off, and other benefits their current policies cover; whether their current benefit plan presents barriers to timely and affordable abortion treatment (e.g., high deductibles and network provider restrictions); and whether benefits should be expanded to promote access to health care in general. Employers with offices in states that prohibit abortion may want to consider employee relocation and remote work policies for employees who wish to relocate from such states.

  1. What are the tax implications of receiving these benefits?
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Unless an employer provides a benefit through a flexible spending account (FSA), health savings account (HSA), or health reimbursement account (HRA), benefits paid by an employer generally qualify as taxable income for the employee under Section 61 of the Internal Revenue Code. Accordingly, are Employers responsible for withholding payroll taxes on benefit payments.

  1. Where can I find out more?

We share this resource as a plain language guide for NJ employers. Various law firms and pension advisors have published in-depth articles on regulatory compliance and benefit design options that you may want to read. Some of these items are: Employer-paid travel assistance for interstate abortion access (Lowenstein Sandler, June 29, 2022); impact of Dobbs v. Jackson Women’s Health Organization for employer-provided healthcare (Ropes & Gray, June 27, 2022); Considerations for employers and employer plan sponsors regarding potential changes in the effect of Roe v. Wade (Morgan Lewis, May 6, 2022).


[1] NJSA §10:7-1(a) (“[T]The New Jersey Supreme Court has recognized that the right to procreation is a fundamental right enshrined in the state constitution and that this right is independent of the United States Constitution. . . .”); NJSA § 10:7-2(a) (“Every person who is in the State, including but not limited to any person who is under the control or supervision of the State, has the fundamental right to … choose whether to conceive a child to become, give birth, or terminate a pregnancy. The New Jersey Constitution recognizes the fundamental nature of the right to reproductive choice, including the right to…terminate a pregnancy…”); right to vote v. byrne91 NJ 287, 306 (1982) (holding that human beings have a “fundamental right” to make “one of the most intimate decisions in human experience, the decision to terminate a pregnancy or to have a child”); Planned Parenthood by Cent. NJ vs Farmers165 NJ 609, 612-13 (2000) (same).

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[2] KFF, Employer coverage of travel expenses for out-of-state abortions (16 May 2022), https://www.kff.org/policy-watch/employer-coverage-travel-costs-out-of-state-abortion/; see also Business InsiderGas, groceries and a hotel: Americans seeking an out-of-state abortion are already paying up to $10,000 for the procedure (June 24, 2022), https://www.businessinsider.com/abortion-costs-roe-v-wade-out-of-state-supreme-court-2022-5.

[3] business insider, above note 2; see also lined resolution vol., Economic Wellbeing of US Households in 2020 – May 2021, https://www.federalreserve.gov/publications/2021-economic-well-being-of-us-households-in-2020-dealing-with-unexpected-expenses.htm.

[4] lined resolution vol., above note 3

[5] See Section 514(a) of ERISA, codified at 29 USC 1144(a); see also Considerations for Employers and Employer Plan Sponsors regarding potential changes in the effects of Roe v. calf Morgan Lewis (May 6, 2022), https://www.morganlewis.com/pubs/2022/05/considerations-for-employers-and-employer-plan-sponsors-related-to-potential-changes-in-the -Effect-of-deer-v-calf.

[6] Andrew E Graw, Julie Levinson Werner, and Batool T Banker, Employer-paid travel assistance for interstate abortion accessLowenstein Sandler (June 29, 2022), https://www.lowenstein.com/news-insights/publications/client-alerts/employer-paid-travel-assistance-for-interstate-abortion-access-eben-employment.

[7] Various benefit structure considerations are addressed in the article by Andrew E. Graw, above Note 6.

This document is for informational purposes only, is not intended to be legal advice, and is not a substitute for consulting an attorney about your particular facts and circumstances. This document is not a solicitation, and your use of this document does not create an attorney-client relationship between you and Lowenstein Sandler. We do not guarantee that the content of this document is correct, complete or up-to-date or that it reflects current legal developments.



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