EBC and the Wellness Requirement
Note: This EBC decision has been rescinded, so comments are now closed on this post. Please see the update for additional information and commentary.
Several days ago, OHSU announced that it is resuming a wellness requirement, with a surcharge for non-compliance. This has understandably has upset a lot of our members and other OHSU employees. While the information we’re sharing here won’t change any minds about the wellness requirement itself, we hope that it does illuminate the process behind the decision and ease folks’ minds about our union’s role in the EBC. (We apologize that it has taken us a few days to get this information out to you.)
What is the Employee Benefits Council?
The EBC is a body that provides employee input on OHSU’s benefits decisions. It is made up of representatives from AFSCME and ONA, as well as unclassified employees (management and faculty). OHSU has three votes, AFSCME has two and ONA has one. The EBC is responsible for making decisions about OHSU’s medical-plan design and benefits, including health-promotion and disease-management programs. In the event of a tie vote within the EBC, OHSU’s president (or designee) serves as tie-breaker.
Why aren’t these decisions made during bargaining?
While our union successfully negotiated a contract that preserved existing benefits contributions, expanded our bereavement-leave options and prevented a spousal surcharge, certain decisions fall within the scope of the EBC and aren’t part of contract negotiations. The EBC determines things like what types of medical plans OHSU offers, what vendor is used to administer claims (e.g., Moda) and what wellness programs are offered (and what sort of incentives or penalties might be applied). Previous iterations of the EBC have approved wellness requirements such as getting a flu shot or taking an online health assessment.
What are the disadvantages to the current structure of the EBC?
When the EBC was discussing the wellness requirement and surcharge, many of its members expressed a desire to see more of a “carrot” and less of a “stick” approach to employee wellness. Although the EBC was designed to work by consensus, one of the disadvantages its current structure is that OHSU can ultimately force through a change or new requirement if consensus can’t be reached. Since OHSU has three votes by itself and the two unions have three votes total, a tie can result. If the unions vote against something OHSU wants, OHSU can take the issue to its president to break the tie and side with the employer. We wrote about the problems with this model about a year ago (see here).
Why couldn’t AFSCME have prevented the surcharge?
Some of you may recall that in 2018, AFSCME won an arbitration against OHSU about the EBC trying to force a spousal surcharge. (OHSU tried this again during bargaining this year and was again defeated). The arbitrator determined that a surcharge like the spousal surcharge cannot be implemented by the EBC. However, the arbitrator specifically called out OHSU’s previous wellness surcharges and its existing tobacco surcharge as examples of surcharges that are justifiable under our agreement. This means that OHSU has the authority, through the EBC, to impose a surcharge associated with non-compliance with a wellness program.
Why did AFSCME’s EBC representatives vote for the wellness requirement?
To summarize the situation: OHSU decided that resuming a wellness requirement with a non-compliance penalty was a priority and proposed it to the EBC. (The amount of the surcharge is the same as in previous years.) A recent arbitration decision highlighted that a wellness surcharge was within the purview of the EBC. OHSU has half the votes in the EBC, and the ability to break a tie should the need arise. Simply stated, there unfortunately wasn't a scenario in which the wellness requirement and surcharge weren’t going to happen.
We realize that many of our members don’t understand why our union’s EBC representatives didn’t vote no on this on principle. By voting no, we would have given up any role in the process and any chance to make the requirements less onerous for our bargaining unit. After weighing it over, we felt that AFSCME could better serve our members by being an active participant and working to mitigate things to the best of our ability.
What does this mean, practically speaking? We were instrumental in getting OHSU to offer the screenings more frequently and in more locations, to make the process less inconvenient. The health evaluation is now narrower in scope from OHSU’s initial plan. Employees who are penalized will be able to appeal that decision before an appeals committee and our union will have representation on that committee. Other ways the requirement has been made less burdensome include offering resources to employees who speak English as a second language, offering the screenings during a variety of shifts and including the option to be screened by one’s own medical provider. We are also firmly committed to get an extension of the deadline for compliance with the requirements.
What can we do to change things?
In the short term? The EBC can always amend its decisions. Keep the feedback coming! The EBC works on plan design every year, so things could change in 2020.
In the long-term? While we can’t do anything in bargaining to eliminate wellness requirements, we absolutely can fight to change the structure of the EBC to hopefully prevent this kind of thing from being implemented in the future.
Some of you may recall that during the negotiations that just ended, our union introduced a proposal that would have prevented OHSU from using Dr. Jacobs to break a tie to get its way — instead, the EBC would have been required to work through any ties until consensus is reached. (You can read more about our proposal here.) Not only did OHSU refuse to consider our proposal, it made a counterproposal to turn the EBC into an advisory body only, meaning our members would have effectively had no voice in the process at all — instead, OHSU proposed that the vice president of HR (yes — Dan Forbes!) be the ultimate decision-maker about your benefits. While OHSU dropped that proposal, management made it abundantly clear that we wouldn’t reach an agreement that included our proposed change to the EBC. Our bargaining team didn’t feel that this was strike-worthy as a stand-alone issue, so we withdrew our proposal. Our union will absolutely reintroduce this proposal during negotiations in 2022.