Employers Respond to Supreme Court’s Decision Striking Down Roe v. Wade

In the wake of the U.S. Supreme Court’s decision overturning Roe v. Wade, several large national employers, including Disney and Facebook, stated that they will cover expenses incurred by an employee who must travel out of state for an abortion. Read more about this development here. Perhaps anticipating that some states may try to limit out-of-state travel for an abortion, Justice Kavanaugh posed and answered this question in his concurring opinion: “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.” Thus, efforts by state legislators to limit abortion-related travel are likely to face steep challenges.

What is less clear is how an employment policy to reimburse abortion-related travel would be impacted by legislation that criminalizes abortions, including aiding and abetting abortions. However, Utah’s trigger law limiting abortion access does not seem to contemplate criminal penalties against a woman seeking an abortion or those who may aid her (instead, criminal penalties seem to be reserved for those performing abortions, e.g., doctors and clinics). 

The trigger statute, which limits legal abortions to situations of rape, incest, fetal defects or where the life of the mother is at stake, took effect on Friday, June 24, 2022. However, on Monday, June 28, 2022, a state court judge issued a temporary injunction delaying implementation of the trigger law for at least 14 days. Opponents of Utah’s abortion law are seeking to continue that stay indefinitely pending final review by the courts. Ultimately, the Utah Supreme Court may decide the fate of Utah’s abortion law. Read more about that developing story here. For now, this temporary stay provides Utah employers a little breathing room as they consider whether to adopt policies that address abortion access. Stay tuned to these updates for additional developments. 

Supreme Court Rules Against Public Employer in First Amendment/Religious Speech Case.

On June 27, 2022, the U.S. Supreme Court ruled in favor of a Washington state public employee who had lost his job for engaging in prayer while on-duty. In Kennedy v. Bremerton School District, high school football coach Joseph Kennedy was suspended, and later not rehired, after he knelt in personal prayer at midfield after several games. Kennedy filed suit in federal court alleging that his public employer Bremerton School District violated the First Amendment’s Free Speech and Free Exercise Clauses. The district court granted judgment in favor of the employer, finding that the sole reason Kennedy’s employment ended was the employer’s perceived “risk of constitutional liability” under the Establishment Clause—i.e., constitutional requirements requiring separation of church and state. The Ninth Circuit Court of Appeals affirmed that decision. The Supreme Court reversed, finding in favor of the employee. Writing for the 6-3 majority, Justice Gorsuch explained that “[n]o historically sound understanding of the Establishment Clause begins to make it necessary for government to be hostile to religion in this way.” The court also observed that the coach did “not involve leading prayers with the team” and instead had “knelt at midfield after games to offer a quiet personal prayer.” 

Public employers should take note of this decision and review their policies and practices limiting employees’ personal religious observance during working time. Private employers in Utah should take note of it, too. Although Utah employees in the private sector have no free speech or other Constitutional rights, they do have religious liberty protections arising under Utah’s Antidiscrimination Act. Those rights, which were added to the Antidiscrimination Act in 2015, provide that employees may express their “religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non-harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer.” It is possible that a Utah court could draw upon the Kennedy v. Bremeteron School District decision when applying these statutory religious expression rights. 

Did the Utah Legislature Repeal the Private Employer Verification Act?

Some HR professionals have noticed strange language appearing in the Private Employer Verification Act stating that the act is “contingently repealed.” What does that language mean?

The answer is not found in the statutory language of the Private Employer Verification Act. Rather, a legislative breadcrumb trail beginning with Utah Code Section 63I-2-213 reveals that the Private Employer Verification Act is repealed contingent upon implementation of Utah’s Guest Worker Program. But the Guest Worker Program will not be implemented until (1) 120 days after the state receives federal permission for the program or (2) July 1, 2027. Because neither of those conditions have been satisfied, the Private Employer Verification Act remains in full effect.

The Private Employer Verification Act has resurfaced in HR professionals’ focus since being amended in May, 2022 to require E-Verification from employers with 150 or more, previously 15 or more, employees.     

O’Brien and Tolman to Present on Privacy and Confidentiality in the Workplace on July 12

Michael O’Brien and Mark Tolman, two of the authors of these updates, will present at Salt Lake SHRM’s July 12, chapter meeting on Privacy and Confidentiality in the Workplace. The program will help employers understand the ever-changing and emerging issues about privacy and confidentiality obligations in the workplace, including employee health information, personal identifying information, and workplace monitoring and surveillance. For additional information, or to register, click here.

Articles contributed by Parsons’ Employment & Labor Shareholders Mark D. Tolman, Michael Patrick O’Brien and Summer Associate Corey Hunter.