Series on Reproductive Health Issues for Employers, Part 5: Collective Bargaining Implications of the US Supreme Court’s Decision in Dobbs | Dickinson Wright
On June 24, 2022, the U.S. Supreme Court ruled Dobbs v. Jackson Women’s Health Organizationwho knocked down Roe vs. Wade. In our series Reproductive Health Issues for Employers, we discussed the impact of Dobbs ruling on abortion services as a non-taxable benefit under certain types of group health programs (Part 1), Abortion-Related Travel Benefits, and IRS Employer Payment Plan Rules (Part 2), HIPAA and privacy issues (Part 3), and mental health parity considerations for abortion-related travel (Part 4). In this article, we look at some of the implications of Dobbs’ collective bargaining.
In the nearly 50 years since the Roe vs. Wade decision, a significant percentage of U.S. employer group health plans provided coverage for abortion-related medical services, with more than 80% of employers meeting a recent survey of abortion services stating that they provide coverage for at least some abortion-related medical services. Although Collective Bargaining Agreements (“CBAs”) generally do not include such a granular level of health care detail to specifically provide abortion-related coverage, there are still collective bargaining issues that employers should consider. account.
ABC language on changes in medical coverage
It is not uncommon for a CBA to stipulate that during the term of the collective agreement, an employer must maintain the same provisions relating to the health insurance plan as in the previous agreement. Some collective agreements only allow an employer to make changes to coverage as long as those changes do not result in a reduction or loss of benefits. Employers should review the specific language of their collective agreements regarding changes in medical coverage allowed and/or prohibited during the term of the bargaining agreement. If there is language limiting an employer’s right to change substantial medical coverages (for example, no material or significant reductions), employers should seek legal counsel about the impact the language has on changes to health plans that cover abortion-related services.
Sometimes a provision of a collective agreement or a pattern or practice related to a provision of the collective agreement is no longer permitted due to a change in the law. When this occurs due to a law or regulation related to employee benefits, it is common for the new law to provide a certain amount of time after the expiration of an employer’s current bargaining agreement for the employer and its union can negotiate before the new law comes into effect. However, other times a change in the law has a more immediate effect, as is the case with abortion-related “trigger laws”.
Obviously, an employer cannot comply with a clause of the CTC which obliges him to break the law, but an employer may have the obligation to notify his union and to negotiate a provision of the CTC which has become illegal and certain CTCs are specific on this point. What may be more difficult for abortion restrictions at the state law level is that what is legal or illegal may not be clear and there may be risks for an employer. and its employees (eg, executives) to take certain positions on abortion coverage.
Employers should seek legal counsel to address actual or potential illegality, recognizing that abortion-related medical services and support that are or are not permitted may be an evolving target in many states. On the advice of legal counsel, an employer may be required to provide their union with notice of what is being changed, or notice and an opportunity to negotiate.
The Dobbs decision aroused strong emotions across the political spectrum, including among employees. Although not a new concept, it is important for employers to remember that the National Labor Relations Act prohibits retaliation against employees who discuss terms and conditions of employment (protected concerted activity) . Employers may become aware of an increase in the number of employees discussing or requesting action on reproductive rights issues and/or how the employer should decide on coverage for medical services related to abortion. Employers should seek legal counsel since these types of discussions may be a protected activity under the NLRA.
The impact of the Dobbs ruling on collective bargaining is just one of many areas that employers must grapple with. Dickinson Wright’s Executive Compensation and Benefits group has been monitoring and will continue to monitor the impact of these and other issues related to the Dobbs decision to advise clients on options to respond to this changing landscape of health care coverage.