On June 24, 2022, the Supreme Court of the United States issued a decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade, holding that the U.S. Constitution does not protect a right to an abortion, and returning the authority to regulate abortion to individual states. Louisiana was one of thirteen states that had “trigger laws” that went into effect immediately or by quick state action when Roe was overturned and that either completely banned or severely limited abortions.
Louisiana’s trigger law, originally passed in 2006, was updated in 2022 when Governor John Bel Edwards signed Senate Bill 342 into law as Act No. 545. Act No. 545 bans all abortions except to address ectopic pregnancies or instances when an unborn child “is deemed to be medically futile.” The new law has no exceptions for victims of rape or incest. The law also increases criminal penalties for abortion providers already outlined in state law, doubling the maximum sentences to ten and fifteen years and imposing fines of up to $200,000, depending on when an abortion is performed during a pregnancy. As of August 15, 2022, Act No. 545 is in effect and abortion is not presently available in Louisiana except under very narrow exceptions permitted by Act No. 545.
The Dobbs decision and Louisiana’s Act No. 545 present serious challenges for Louisiana employees and employers that will be litigated over the next few years. In the meantime, Louisiana employers may want to consider the following issues under Louisiana law post-Dobbs. The hostility of the Louisiana Legislature to abortion is clear, but Louisiana law may provide protection from employment discrimination on the basis of pregnancy, abortion, and leaves of absence related to pregnancy.
Despite Louisiana’s near-total ban on abortion, there are still federal and state antidiscrimination laws that protect pregnant employees from being fired for having an abortion, contemplating an abortion, or refusing to have an abortion. Title VII of the Civil Rights Act of 1964 (Title VII), as amended by the Pregnancy Discrimination Act (PDA), prohibits employers from taking adverse employment actions “because of or on the basis of pregnancy, childbirth, or related medical conditions.” The U.S. Equal Employment Opportunity Commission’s (EEOC) Enforcement Guidance on Pregnancy Discrimination and Related Issues explains that under Title VII and the PDA, “it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.”
Louisiana law likewise prohibits discrimination based on pregnancy and related medical conditions. The Louisiana Pregnancy Discrimination Act (LPDA), like Title VII, prohibits an employer from discriminating on the basis of “pregnancy, childbirth, or related medical conditions.” Because the LPDA’s language is the same as Title VII’s, it is interpreted in the same way that Title VII is. The LPDA expressly requires that its terms “be construed in accordance with federal laws regarding disability, and based on pregnancy, childbirth, and related medical conditions.” Indeed, the U.S. District Court for the Eastern District of Louisiana, in Ducharme v. Crescent City Deja Vu, L.L.C., held that the LPDA, like Title VII, prohibits discrimination based on abortion and noted that Louisiana courts often follow the reasoning of federal decisions.
Leaves of Absence
The LPDA makes it unlawful for an employer to deny leave to an employee affected by pregnancy, childbirth, or a related medical condition. The LPDA also makes it unlawful to deny leave to an employee affected by pregnancy, childbirth, or a related medical condition where other employees with temporary disabilities are permitted to take leave. Because the LPDA arguably protects an employee’s choice to obtain an abortion, the leave provision may be relevant for an employee who chooses to travel from Louisiana to a state where abortion is legal. Leave would also be available for the duration of any recuperation needed after the procedure.
The LPDA may require leave when the Family and Medical Leave Act (FMLA) does not for Louisiana employees because of differences in coverage between the two laws. The FMLA extends eligibility to employees of employers with fifty or more employees in Louisiana, where those employees work within a seventy-five-mile radius. The LPDA, on the other hand, applies to employers with more than twenty-five employees in Louisiana, regardless of where those employees are in relation to one another. While there is some question of whether the FMLA would apply to an abortion without complications, Louisiana law will support leave for employees protected by Louisiana law.
State laws regarding abortion are rapidly changing after Dobbs, and they vary from state to state. In Louisiana, abortion may be a protected procedure for Louisiana employees under state and federal laws. Further, Louisiana law may mandate leave for abortion care and recovery from abortion.
The future of legal abortion services in Louisiana is currently unclear. Louisiana employees who decide to access such care in other states may need to take into account the interplay of federal law and the LPDA on any related leave or accommodation requests. Of course, Dobbs has generated far-reaching fallout for employers nationally given the impact on employee benefits such as travel reimbursement.