The Supreme Court’s June 24, 2022 decision in Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade and with it nearly 50 years of the federal regulation of abortions. For businesses nationwide, Dobbs raises questions about a variety of employment-related issues, including employee benefits, free speech, discrimination, and employee privacy. Add in various legislative changes at the individual state level, and the view for employers is murky at best. While the effect of Dobbs on many other employment issues may be unclear at the moment, the rights afforded to individuals under the Family and Medical Leave Act (FMLA) remain unchanged. Employers should be mindful of these rules when proceeding with pregnancy and abortion-related leave requests in the wake of Dobbs.

What Does the FMLA Cover?

The FMLA entitles eligible employees to unpaid job-protected leave when they are unable to perform the functions of their job for various reasons, including but not limited to:

• The birth of a child to the employee or employee’s spouse.
• The employee’s own serious health condition.
• The serious health condition of a covered family member.

Is an Employee Entitled to FMLA Leave for an Abortion?

Likely yes. There are a number of circumstances in which an employee may be entitled to FMLA leave in the context of abortion.

Employees are entitled to FMLA for any period of incapacity due to their pregnancy without regard to the duration of their incapacity or whether they have seen a medical treatment provider. If a pregnant employee undergoes an abortion and is unable to work and perform regular daily activities for any period of time, the employee may be entitled to leave. 

Beyond this, an abortion may be a “serious health condition” and thus potentially covered by the FMLA for reasons other than the pregnancy. A “serious health condition” is an illness, injury, impairment, or physical or mental condition that involves either (1) an overnight stay in a hospital or (2) the inability to work or perform regular daily activities for three consecutive days and certain continuing treatment by a health care provider. If, as a result of an abortion, an employee is unable to work for at least three consecutive days and must be seen by her doctor at least twice within the first 30 days post-procedure or she is prescribed a course of medication or therapy and has a follow up appointment with her provider in the first 30 days post-procedure, then she is entitled to FMLA leave. If the procedure involves an overnight stay in a health care facility, the employee is entitled to leave for the procedure and related recovery time. And, even if the employee does not experience a serious health condition in connection with the procedure itself, she may qualify for leave if complications develop and all of the elements of a serious health condition are met at that time. 

The FMLA also allows employees to take leave to care for their spouse, son, daughter, parent, or another individual in loco parentis who has a serious health condition —including pregnancy. This means that pregnant female employees may not be the only ones entitled to FMLA in the context of an abortion. Non-pregnant female spouses, mothers and daughters, as well as male spouses, sons, and fathers, may also be entitled to leave when their covered family member has an abortion and the elements above are met.

Is Abortion a Serious Health Condition?

Though few courts have directly addressed the issue of abortion in the context of the FMLA, at least two have assumed with little to no analysis that an abortion was a serious health condition entitling the employee to FMLA leave. 

In Hite v. Biomet, Inc., 38 F. Supp. 2d 720 (N.D. Ind. 1999), the Northern District of Indiana tackled the issue of abortion and the FMLA. There, an employee took FMLA leave after she electively terminated her pregnancy at the advice of her doctor. After she returned from leave, she faced a hostile work environment that induced stress and anxiety and required her to take more leave. The employer then fired the employee after she failed to return to work. The employee sued her employer for interference with her FMLA rights and the Northern District of Indiana denied summary judgment for the employer. Though this court did not specifically address whether the abortion was a serious health condition, it impliedly assumed so by finding that the employee’s abortion-related leave was protected under the FMLA.

Similarly, in Call v. Fresenius Med. Care Holdings, Inc., 534 F. Supp. 2d 184 (D. Mass. 2008), an employee sued her employer for firing her after she was absent for several days to care for her adult daughter following the daughter’s abortion. The employee claimed that she should not have been fired because her absences were for an FMLA qualifying reason. There, the employer conceded that the daughter had a serious health condition since she spent the night in the hospital for the procedure. The Massachusetts District Court accepted the employer’s concession and did not question whether the daughter’s abortion qualified as a serious health condition. Rather, the fight here was about whether the employee was needed to care for the adult daughter which turned on whether the abortion left the daughter incapable of self-care because of a disability. As in Hite, the court denied summary judgment and allowed the case to go forward.

Is Travel Covered by FMLA?

Few courts have directly addressed whether travel for medical care qualifies for FMLA leave but those that have suggest that travel required for medical care may also be covered by the FMLA. In Michaels v. City of McPherson, Kan., No. 13-1128-CM, 2014 WL 3107966, at *8 (D. Kan. July 7, 2014), a federal court in Kansas held that an employee’s travel for his stepdaughter’s medical appointment qualified for FMLA leave. There, the employee’s stepdaughter had a medical appointment on May 18, but he also requested May 17 off to travel for the appointment. The employer refused to grant the May 17 request, and the employee sued for FMLA interference. The court agreed that the employee’s leave on May 17 to travel to the medical appointment qualified for FMLA. The court stated, “‘an employee is “needed to care for” a family member … [when], for example, because of a serious health condition, the family member is … unable to transport himself or herself to the doctor.’ Here, the plaintiff has put forth evidence that he needed to care for his stepdaughter by driving with his wife and family the day before the stepdaughter’s medical appointment.” Similarly in Ballard v. Chicago Park Dist., 741 F.3d 838, 839 (7th Cir. 2014), the Seventh Circuit held that leave was proper under the FMLA to protect an employee’s trip to Las Vegas to care for her terminally ill mother.

On the other hand, at least two courts have found leave requests that include travel did not qualify for leave under the FMLA. See Tayag v. Lahey Clinic Hosp., Inc., 677 F. Supp. 2d 446 (D.Mass.2010) Held employee was not entitled to FMLA leave to care for her disabled spouse during a trip to the Philippines to receive “faith-healing” where “nearly half of the … trip was spent visiting friends, family, and local churches.” Tellis v. Alaska Airlines, Inc., 414 F.3d 1045, 1048 (9th Cir. 2005) Held employee’s cross-country trip to retrieve his family car could not be considered “caring for” his wife under the FMLA.

Will Employers Face Liability for Granting Abortion-Related Leave?

Probably not. The Supremacy Clause of the Constitution provides that the “Constitution and the Laws of the United States … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Thus, under the preemption doctrine derived therefrom, states’ laws that conflict with federal laws cannot be given effect. The FMLA is a federal law. Any state law imposing civil or criminal liability for acts that are otherwise mandated by federal law — such as granting FMLA leave to eligible employees — is likely subject to preemption. The Dobbs decision does not prohibit abortions as a matter of federal law but rather removed the Constitutional protections in place under Roe that had formerly preempted states from establishing their own more restrictive laws on abortions. 

Does the Employee Have a Right to Privacy?

Some employees may prefer to keep the circumstances of a pregnancy or an abortion private from their employer. Employers may prefer to avoid collecting such information from an employee. It is well established that employers should not request, and employees should not provide, a medical diagnosis as part of the FMLA certification process. Nonetheless, the process may, and usually does, reveal whether the employee is pregnant, the nature of the medical treatment that prevents the employee from work, and  “other appropriate medical facts related to the condition”. Employees who do not provide complete and truthful certifications, and employers who do not require such information, may face undesirable complications down the road related to the tracking and management of the employee’s FMLA leave. 

In Keller v. MGM Grand Detroit, LLC, No. 13-CV-10216, 2014 WL 12573490 (E.D. Mich. Dec. 19, 2014), the Eastern District of Michigan ruled for the employer and accepted its reasonable belief that an employee misused FMLA leave to undergo an abortion. There, the employee had reported her FMLA leave was for anxiety but later submitted a contradictory doctor’s note. The court held that the employer reasonably believed the employee misused leave but did not analyze whether leave for an abortion could also be a qualifying leave under the FMLA. Had the employee provided a medical certification for her abortion, she may have qualified for leave for that reason, and the circumstances leading to the employer’s belief that she misused leave might have been avoided in the first place.

Takeaways for Employers

With so much uncertainty right now, employers should not lose sight of the established standards of the FMLA. Be mindful that no two leave requests are exactly the same, and each should be assessed on a case-by-case basis in light of the current FMLA regulations. Consult Taft’s employment law attorneys for up-to-date guidance on the FMLA and other employment laws in the wake of Dobbs.