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Reproductive Healthcare Issues for Employers Series, Part 5: Collective Bargaining Implications of the U.S. Supreme Court Decision in Dobbs



On June 24, 2022, the United States Supreme Court released Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade. In our Reproductive Healthcare Issues for Employers series, we have discussed the impact of the Dobbs decision on abortion services as a non-taxable benefit under certain types of group health programs (Part 1), abortion-related travel benefits and the 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 post, we consider some of the collective bargaining implications of Dobbs.

In the nearly 50 years since the Roe v. Wade decision, a meaningful percentage of U.S. employer group health plans have provided coverage for abortion-related medical services, with over 80% of employers responding to a recent survey on abortion services indicating that they provide coverage for at least some abortion-related medical services. While collective bargaining agreements (“CBAs”) typically do not include such a granular level of detail on health care to specifically provide for abortion-related coverage, there are still collective bargaining issues employers should consider.

CBA Language on Changes in Medical Coverage

It is not uncommon for a CBA to provide that during the term of the bargaining agreement, an employer must maintain the same medical plan provisions as in the previous agreement. Some CBAs only permit an employer to make changes in coverage as long as the changes do not result in a reduction or loss of benefits. Employers should review the specific language of their CBAs regarding what changes to medical coverages are permitted and/or prohibited during the term of the bargaining agreement. If there is language limiting an employer’s right to change the substantive medical coverages (e.g., no material or significant reductions), employers should consult with legal counsel on the impact that language has on changes to health plans that cover abortion-related services.

Illegality

Sometimes a provision of a CBA or a pattern or practice related to a CBA provision is no longer permitted due to a change in the law. When this happens due to an employee benefits related statute or regulation, it is common for the new law to provide some period following the expiration of an employer’s current bargaining agreement for the employer and its union to bargain before the new law takes effect. However, other times a change in law has a more immediate effect, such as is the case with abortion-related “trigger laws.”

Obviously, an employer cannot comply with a CBA term that requires it to violate the law but an employer may have an obligation to notify its union and bargain over a CBA provision that has become illegal and some CBAs are specific on this point. What may be more difficult for state law level abortion restrictions is that what is legal or illegal may not be clear and there may be risks to an employer and its employees (e.g., officers) from taking certain positions on abortion coverage.

Employers should consult with legal counsel on responding to actual or potential illegality, recognizing that what abortion-related medical services and support is or is not permitted may be a constantly moving target in many states. Depending on advice from legal counsel, an employer may need to provide its union notice of what is being changed, or notice and an opportunity to bargain.

Protected Activity

The Dobbs decision has triggered strong feelings across the political spectrum, including among employees. While not a new concept, it is important for employers to remember that the National Labor Relations Act prohibits retaliation against employees who discuss the terms and conditions of employment (protected concerted activity). Employers may become aware of an increase in employees discussing or demanding action on reproductive rights issues and/or how the employer should decide on coverage of abortion-related medical services. Employers should consult with legal counsel since these types of discussions may be protected activity under the NLRA.

Conclusion

The impact of the Dobbs decision on collective bargaining is just one of the many areas employers must address. The Dickinson Wright Employee Benefits and Executive Compensation Group has been and will continue to monitor the impact of these and other issues surrounding the Dobbs decision to advise clients on options for responding to this changing health care coverage landscape.

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