Many companies, quick to announce abortion assistance policies following last month’s Supreme Court decision that overturned Roe v. Wade, were vague on the details. Many offered reimbursement for travel, but few laid out plans on how employees could use such a benefit and maintain their privacy.
“It’s important for companies to structure this in a way where an employee has to reveal as little as possible,” said Brietta R. Clark, a professor of law at Loyola Law School.
“Ideally, companies should make this available as easily as possible and as broadly as possible without someone having to reveal private information about their specific medical condition or treatment,” said Clark, who is an expert on health care law and inequality.
NBC News reached out to more than 20 companies that announced they would provide reimbursement to employees who needed to travel out of state to receive abortion care. We asked specifically how the policies would be applied, who would be covered and if systems were already in place.
Amazon, Meta, Disney, Warner Bros. Discovery, Apple, Bumble, the NBA and WNBA, Zillow, Tesla, Starbucks and Airbnb did not respond to the questions.
Dick’s Sporting Goods, CVS and Microsoft referred us to their previously released statements, which did not address the questions.
Netflix spokesperson Bao Nguyen said that its policy would be available to all full-time employees, and had been set up in recent weeks. Nguyen said employees would use their health insurance to receive travel reimbursement and would not have to disclose the reason for their time off.
“We have a flexible time-off policy, where employees take the days off they need (versus having to submit a request to HR or their manager),” Nguyen said.
An H&M spokesperson said the company’s “employee financial assistance program is for eligible U.S. employees who may reside in a state that restricts or prohibits abortion services.”
Part-time and full-time employees are eligible, according to the company, and “employees can confidentially apply for emergency financial support from this fund by applying online through an internal web portal.”
LiveNation also said its procedures for applying for the benefit would stay confidential.
SAP, the software corporation headquartered in Germany with more than 105,000 employees worldwide, laid out the most comprehensive plan.
The policy was put into place on Friday, June 24, the same day the Supreme Court overturned Roe, said Jackie Montesinos Suarez, head of communications for SAP North America.
Every U.S. based employee, whether part-time or full-time, who is covered by SAP’s insurance, along with their dependents, is eligible to receive up to $5,000 for travel and accommodation, and can travel to any U.S. state for care.
“This is the same that we offer to employees that need transplants,” Montesinos Suarez said.
Employees and dependents can go directly through the insurance company to receive the benefit. “HR or anyone at SAP is not part of the reimbursement process,” Montesinos Suarez said.
“The feedback from employees has been overwhelmingly positive,” she added.
Companies promising confidentiality and allowing employees to go through third parties and thereby avoid human resources and management altogether have the right intentions, said Paula Roy, a human resources vice president with more than 30 years of experience. But employees will initially go to HR anyway, she said, potentially opening up the company to liability, and the employee to breaches of privacy rights.
Employees typically start with HR because they are looking for HR to “direct them to the appropriate resource,” Roy said.
“It’s always going to go through HR first, even when there are things that people can get directly from the PEO [professional employer organization to which companies outsource] and don’t need our help.”
A Disney employee, who wished to remain anonymous to speak about a sensitive topic, agreed.
“I would go to HR first,” she said. “Because it’s a huge corporation, and it’s hard to find answers up-front without having to talk to several people.”
“Big media companies, they provide links and stuff to your benefits and that, but that’s about it,” she said. “So it’s a lot of stuff that you have to dig through yourself.”
The employee said she would feel “pretty uncomfortable” going to HR looking for help with abortion access, “because it is such a deeply personal matter.”
“It shouldn’t be anyone else’s business,” she said.
But for employees who don’t know they can go directly through insurance or their company’s PEO, and for employees who need HR’s help to wade through complicated benefits websites, their business will become other people’s business, Roy said.
“Is this going to go through the people in payroll? A human resources assistant?” she asked. “HR people are pretty professional and don’t share the stuff that they shouldn’t share, but there’s no guarantee.”
“There would need to be information shared, even if you don’t share the specifics,” Roy said. For example, a manager would need to know an employee needs several days off for travel and recovery.
“I think that there’s a lot of concern about who would need to know, who would potentially share information and who would have to maintain records and discovery on those records,” she said.
But, Clark said, “HR does not have to document, ever.”
“An employee’s question about ‘where do I go for resources?’ shouldn’t be documented,” she said.
“If you want employees to feel comfortable being able to access funds for health care out-of-state then don’t exceptionalize abortion,” she said. “I think we should be considering structuring this in a way that recognizes transportation for medical care is critical to access, and let’s not require women who require reproductive health care to go through special hurdles or something that’s outing their medical health need.”
Clark said she “applauds” the companies that are setting up abortion assistance benefits for employees in a way that “supports their medical privacy and protects them.” But she acknowledges the companies may be opening themselves up to states’ attempts to go after them criminally or civilly, even if they are ultimately able to defend against such actions.
Texas Attorney General Ken Paxton has already said he plans to prosecute companies that provide funds for employees’ out-of-state abortion care.
“If a state specifically crafts a law that says insurance plans cannot fund abortion services,” some employers may be bound by these bans, Clark said. Others, in particular, self-insured employers may be able to avoid the law because of federal preemption under ERISA, a federal law that protects individuals covered under private insurance plans.
Health plans must also comply with the Health Insurance Portability and Accountability Act (HIPAA), which protects the privacy of patients’ health information. But there are exceptions that permit disclosure where required by law, such as through a court order or mandatory reporting scheme.
However, the U.S. Department of Health & Human Services recently updated language on HIPAA, stating that its privacy rule “supports such access by giving individuals confidence that their protected health information, including information relating to abortion and other sexual and reproductive health care, will be kept private.”
Additionally, Clark pointed out that Justice Brett Kavanaugh, in his concurring opinion on the overturning of Roe v. Wade, wrote: “May a State bar a resident of that State from traveling to another State to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.” Clark said this may provide one of the strongest limits on states’ attempts to prevent women from seeking abortions outside their own borders.
“Tons of litigation is about to happen where we will find out which laws will come into play and how much protection they provide,” Clark said.
“The reality is,” Clark added, “regardless of the strength of legal defenses companies may have, the threat of liability, the threat of criminal charges, have a chilling effect.”