Does FMLA cover leave for abortion? What about in states where it’s illegal?

The ink was barely dry on the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization when the U.S. Department of Labor released a statement in which the agency confirmed that it would continue “empowering women using every tool” available.

The DOL supports reproductive freedom.

On Friday, U.S. Secretary of Labor Marty Walsh issued the following statement regarding the U.S. Supreme Court’s decision to overturn Roe v. Wade:

“The U.S. Supreme Court today overturned decades of constitutional precedent, now allowing states to ban or significantly restrict access to abortion. This decision means that women across the country will lose access to necessary reproductive medical care.

“Reproductive autonomy directly supports women’s ability to get an education, participate in the labor force, and increase their earning potential and it has helped to narrow the gender wage gap. Losing the right to reproductive freedom will have a catastrophic impact on women’s employment and economic security.  

“Access to abortion and all other personal reproductive choices is not only an issue of health and personal liberty, but also squarely an economic issue that determines the welfare of working women and their families. The Department of Labor will work to advance our mission by empowering women using every tool we have.”

In a separate statement, U.S. Department of Labor’s Women’s Bureau Director Wendy Chun-Hoon confirmed that “the right to reproductive freedom – which includes the right to access legal abortion services – is fundamental to women’s autonomy, health outcomes and economic security. The U.S. Department of Labor’s Women’s Bureau … is uniquely positioned to safeguard the needs of working women and advocate for their equality, which includes access to safe reproductive health options such as abortion, contraception, and comprehensive maternity care.”

FMLA coverage for abortion?

Neither statement specifically referenced the Family and Medical Leave Act. What should employers read into that?

The FMLA entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave. Eligible employees are entitled to 12 workweeks of leave in a 12-month period for a serious health condition that makes the employee unable to perform the essential functions of their job or to care for the employee’s spouse, child, or parent who has a serious health condition.

The FMLA defines “serious health condition” as an “illness, injury, impairment, or physical or mental condition” that involves “continuing treatment” by a health care provider. While the FMLA does not define “continuing treatment,” the FMLA governing regulations clarify that a serious health condition involving continuing treatment by a health care provider includes any period of incapacity due to pregnancy, or for prenatal care. A period of incapacity includes the “inability to work.” The FMLA regulations further contemplate that “circumstances may require that FMLA leave begin before the actual date of birth of a child.” A mother may be entitled to leave for incapacity due to pregnancy even if she misses fewer than three consecutive days of work.

So, while the pregnancy itself is not an FMLA-qualifying event, incapacity due to such pregnancy may qualify as a serious health condition. The FMLA’s legislative history indicates that Congress intended to include miscarriage as a possible serious health condition. Since then, courts (like this one and this one) have held that a miscarriage constitutes a serious health condition. So, it is not much of a logical leap to assume that the FMLA could apply in situations involving medical or surgical abortion too. Indeed, a miscarriage is spontaneous abortion.

Separately, elective surgery (for abortion or otherwise) can be a serious health condition if it results in an overnight stay in the hospital under the FMLA’s inpatient care criteria. And the procedure notwithstanding, the emotional and psychological consequences could create a separate basis for FMLA coverage (i.e., a mental condition that involves continuing treatment by a health care provider). For example, the Fourth Circuit has noted that a “serious health condition” analysis focuses on the “effect of an illness on the employee and the extent of necessary treatment rather than the particular diagnosis.”

For these reasons, I suspect the DOL will vigilantly enforce the FMLA in these situations.

Employer takeaways.

Even if your business operates in a state that outlaws abortion following the Dobbs decision, and even if an employee breaks the law, that employee may still have rights under the FMLA. In those situations, don’t forget that this federal workplace law still applies. (Spoiler alert: there are others too, which I’ll address later this week.)

As always, please don’t rely on this blog for legal advice, as each situation stands on its own set of individual facts and circumstances (e.g., company size, employee eligibility, etc.) Instead, consult your employment counsel when situations like these arise in your workplace.