Is your privacy protected if your employer pays for abortion-related travel expenses?

·6 min read

Large North Carolina-based employers have joined a growing list of companies nationwide supporting their employees who need to travel long distances for abortions.

Red Hat, the Raleigh-based technology corporation, and Bank of America, the Charlotte-based international investment bank, both told The N&O that they will reimburse travel for abortions and other types of reproductive care.

But are employees able to receive their company’s abortion benefits without sharing with their employer that they got an abortion?

The News & Observer spoke with legal, policy and insurance experts to learn more about the risks employees may face when taking advantage of company assistance to receive abortion care.

Do you have to tell your employer you got an abortion?

Simply, no. An employee may not need to share information about their procedure directly, but there could be other ways that employers learn about it.

This doesn’t mean that people shouldn’t take advantage of this company benefit, experts say, but people should know how their information may be moving around.

“It’s very legitimate in our society for people to be concerned about others, especially their employers, knowing they got an abortion,” said Alina Salganicoff, director of women’s health policy and senior vice president of the Kaiser Family Foundation. “Abortion has been highly stigmatized.”

Abortion is currently legal in North Carolina, but there are some laws that put regulations on the procedure. For the full list of restrictions in North Carolina, visit The Guttmacher Institute at guttmacher.org/fact-sheet.

Red Hat told The N&O that associates do not need to communicate anything to the company, and specific claims to receive the reimbursement “are not shared in an identifiable form with Red Hat,” as they’re governed under Health Insurance Portability and Accountability Act (HIPAA) regulations.

“This benefit is managed the same way as any other health claim, which means associates and/or dependents manage their claims directly through Red Hat’s insurance provider,” communications director Allison Showalter said. “Red Hat does not have access to any individual, identifiable, claims details of our associates or dependents.”

On Wednesday, the U.S. Department of Health & Human Services published guidance on HIPAA’s Privacy Rule disclosing reproductive health care information. For the full publication, visit hhs.gov/hipaa/for-professionals/privacy.

Those on their company’s health plans should be aware that there are two types of insurance, though employees often don’t know which type they have.

Self-insured plans may have a member of your company, usually a human resources representative, see whether a claim is medical or drug to check that your insurance covers it. They won’t know the procedure or the provider. But third party administrators usually do this work, Salganicoff said.

“It’s not supposed to get to your supervisor or anyone else outside the privacy cone of HR, but you should know someone in your company might have some information about your procedures,” Salganicoff said.

For example, at the Kaiser Family Foundation, which has a self-insured plan, the company’s HR representative can see whether a claim was submitted and the dollar amount for the service — no information about the service itself or the healthcare professional that the employee or dependents saw, she said.

“But, of course, that’s just one company. Every company looks different,” she said.

Fully-insured group health plans, under the Employee Retirement Income Security Act of 1974, have your claims data fully processed by your insurance provider. This means that nobody in your company would get any information — even information that’s redacted.

Blue Cross Blue Shield, North Carolina’s largest health insurer, told The N&O that “information provided for any potential reimbursement would be subject to the same HIPAA privacy protections as other medical claims.”

Volunteers with the Triangle Abortion Access Coalition, wave to cars passing under the American Tobacco Trail Bridge over I-40 in Durham, N.C. on June 24, 2022 the afternoon that the Supreme Court decision overturning Roe v. Wade was handed down. The volunteers are occupying the bridge throughout the day. “We’re sharing the knowledge and news that abortion is still legal in this state. And we will fight to keep it legal,” one advocate said.
Volunteers with the Triangle Abortion Access Coalition, wave to cars passing under the American Tobacco Trail Bridge over I-40 in Durham, N.C. on June 24, 2022 the afternoon that the Supreme Court decision overturning Roe v. Wade was handed down. The volunteers are occupying the bridge throughout the day. “We’re sharing the knowledge and news that abortion is still legal in this state. And we will fight to keep it legal,” one advocate said.

Should you avoid using company benefits if your information could be shared?

A lot of people won’t be able to access this care without a company reimbursement benefit, Salganicoff said. So if employees want to take advantage of these travel reimbursements or other benefits, they should know who might know about their care — and how.

“Employers who are looking to help their employees out with travel benefits and abortion coverage are likely ones to be sympathetic,” Salganicoff said. “And remember, there’s no state law that criminalizes people who get abortions, but some places do criminalize people who provide abortions and put civil penalties on anyone aiding and abetting.”

State laws and bans vary somewhat, so it’s hard to make a blanket statement about all states in the country, said Michelle Long, senior policy analyst for women’s health policy at the Kaiser Family Foundation.

Through HIPAA, law enforcement may be able to get medical information if there’s a court order for a person’s health records, Long said. But this doesn’t compel someone to incriminate themselves, which is what your employer could be doing.

Why you should know where your health info is going

“My biggest recommendation is to be very careful about what the reimbursement entails, what is required to take advantage of it and what type of information is being collected by the employer,” said Jeffrey M. Hirsch, a UNC-Chapel Hill distinguished professor of law.

Hirsh, a labor and employment law expert, wants employees to keep their safety a priority when taking advantage of company benefits, no matter how well-meaning their employers are.

“Employees need to assume that their employers are watching them constantly, even in the rare instances when they’re not supposed to. So if there’s information that an employee wants to keep secret, like seeking an abortion, they would be wise to avoid giving employers any related information, if at all possible,” he said.

“I’ll note as well that more sophisticated employers are increasingly able to use indirect information to determine what individuals are doing, what medical conditions they have, etc. … This is especially true because there are no general requirements that employers must keep employee information private.”

It’s important to read the fine print when taking advantage of a benefit like this, Hirsh said, but it’s also important to remember that the company would be the one to get in legal trouble for offering help.

“If your employer does find out, I wouldn’t say you can rest easy knowing that your abortion-sympatheic employer will protect you, but no state has a law that will criminalize a person getting an abortion,” Long said. “The company could be the one to take the fall for helping you financially or in some other way to get the procedure.”

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