OSHA Issues Final Rule on Handling ACA Whistle-Blower Complaints

Latest version mostly leaves intact the agency’s 2013 interim rule

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The Occupational Safety and Health Administration (OSHA) has published a final rule creating procedures for handling whistle-blower complaints under the Affordable Care Act (ACA).

The ACA prohibits employers from retaliating against workers who report alleged violations of the act's health coverage reforms. Employers also may not retaliate against employees who receive a premium tax credit or cost-sharing reduction for enrolling in a qualified health plan.

"This rule reinforces OSHA's commitment to protect workers who raise concerns about potential violations of the consumer protections established by the [ACA] or who purchase health insurance through an exchange," said David Michaels, assistant secretary of labor for occupational safety and health, in a press statement.

The final rule isn't going to change much for employers because it's not very different from an interim rule that was put into place three years ago, explained Lloyd Chinn, an attorney with Proskauer in New York City.

The final rule mirrors many of the provisions related to whistle-blower protections under other statutes that OSHA enforces, said Carla Gunnin, an attorney with Jackson Lewis in Atlanta.

The agency enforces anti-retaliation provisions under 21 other statutes, including the Occupational Safety and Health Act (OSH Act) and the Sarbanes-Oxley Act (SOX).

Key Protections

The ACA requires certain employers to offer affordable health coverage to full-time employees and their dependents. Covered employers may be penalized if an employee receives a premium tax credit for coverage through an exchange.

"Thus, the relationship between the employee's receipt of the premium tax credit and the potential employer shared responsibility payment imposed on an applicable large employer could create an incentive for an employer to retaliate against an employee," according to the final rule.

The retaliation protections under the ACA are relatively limited, noted Thomas Benjamin Huggett, an attorney with Littler in Philadelphia.

Employees are only protected if they report violations of the ACA's health coverage reforms or if they receive a premium or subsidy.

The final rule includes procedures and time frames for employers and employees to appeal an OSHA decision. Either party may request a hearing by a Department of Labor administrative law judge (ALJ). And an ALJ's decision may be appealed to the department's administrative review board.

"The employee may also file a complaint in federal court if the agency does not issue a final decision within certain time limits," OSHA said.

Handling Complaints

The procedures for handling retaliation claims under the ACA work similarly to those under other statutes, Chinn said. For example, under both the ACA and SOX, an employee must file a complaint with OSHA within 180 days of the alleged retaliation.

Gunnin explained that a complaining employee must simply show that the protected activity was a "contributing factor" to an adverse employment decision—rather than the "but for" cause.

Then the employer will have to present "clear and convincing evidence" that it would have taken the same action even if the employee didn't engage in the protected activity.

She noted, however, that under the ACA it may be easier for an employer to present a viable argument that the decision-maker didn't have knowledge of the employee's protected activity.

Benefits administration is usually confined to a small group, she said, and the supervisors who generally make employment-related decisions may not be aware of any employee benefits issues.

Tips for Employers

"The best practices for employers are essentially the same under any whistle-blower laws," Gunnin said. "If red flags are raised by an employee, the issues should be fully investigated."

"Employers should make sure their program for dealing with whistle-blower complaints and retaliation claims encompasses all of the applicable statutes that OSHA deals with," Huggett said. "They should be aware of their obligation and opportunity to respond to these complaints when received."

Chinn mentioned that OSHA received 28 ACA retaliation complaints in 2015.

That's low compared to the 2,026 complaints filed under the OSH Act and the 156 complaints filed under SOX in 2015, but it's still higher than the number of complaints filed under some of the other statutes, he said. "The trend is moving up every year, and I wouldn't be surprised to see that continue."

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