Frank C. Morris, Jr., Susan Gross Sholinsky, Jennifer Barna, and Mason Gardner, attorneys in the Employment, Labor & Workforce Management practice, co-authored an article in the Employee Benefit Plan Review, titled “Abortion-Related Time Off After Dobbs: How the Family and Medical Leave Act and Other Laws Might Apply.”

Following is an excerpt (see below to download the full version in PDF format):

The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and Casey v. Planned Parenthood and leaving the legality of abortion up to each state, inevitably will increase the number of individuals who seek to travel to receive abortion services and, in turn, request time off from work.

Employers must therefore address the question of whether they are required to provide time off for abortion-related care, including possible requisite travel time, under federal laws, such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and the Pregnancy Discrimination Act (PDA) (part of Title VII of the Civil Rights Act of 1964 (Title VII)), or under comparable state and local laws. While the legal landscape is anything but clear, there are certainly arguments that abortions (even if elective), and any accompanying travel time, could be the basis for leaves under one or more of these laws.

FMLA

Under the FMLA, eligible employees with sufficient service working for employers with 50 or more employees are entitled to an unpaid, job-protected leave of absence of up to 12 weeks in a 12-month period for various reasons related to caregiving and medical issues. With respect to one’s own health conditions, medical leave is permitted only for a “serious health condition” that, as the statute specifically states, “makes the employee unable to perform”2 the essential functions of their job. The FMLA also provides that time off to care for a spouse, son, daughter, or parent who has a serious health condition is among the qualifying reasons for leave.

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