OSHA Issues Final Rule on Handling ACA Retaliation and Whistleblower Complaints

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All Employers

EFFECTIVE

October 13, 2016

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On October 13, 2016, the Occupational Safety and Health Administration (“OSHA”) released final regulations regarding whistleblower complaints under the Affordable Care Act (“ACA”).  The Final Rule (“Rule”) is intended to protect employees who report alleged violations of the ACA, or who receive a premium tax credit or cost-sharing reduction for enrollment in a qualified health plan.  Overall, the rule is very similar to the interim rule implemented in 2013.  However, there are some changes that address procedures and timeframes for employee complaints, OSHA investigations, administrative review procedures, and more.

Anti-retaliation measures.  The ACA requires large employers of 50 or more to offer affordable health coverage to employees.  Employers may be penalized if employees receive financial assistance (e.g., a premium tax credit or subsidy) through the exchange, opening the possibility that employers will retaliate against employees who receive such a credit.

The Rule thus provides employees protection from retaliatory action if: (A) the employee receives a premium tax credit or subsidy; or (B) the employee engages in protected activities related to reporting a violation of the ACA, such as:

  1. Providing or intending to provide information to the employer, government, or state attorney general relating to possible violations of Title I of the ACA;
  2. Testifying or intending to testify in a proceeding about a violation;
  3. Assisting/participating, or intending to assist or participate, in a proceeding about a violation; or
  4. Objecting or refusing to participate in any activity the employee reasonably believes is a violation.

The Rule also expands the coverage of “protected activities” to include employees seeking information from the employer regarding the employer-sponsored health coverage in order to apply for advance payment of a premium tax credit.  Retaliation includes threatening, coercing, disciplining or other actions adversely impacting an employee’s conditions or privileges of employment (e.g., termination, reduction in work hours, or denial of benefits).

Procedures and timeframes for whistleblower complaints.  Employees have 180 days from the alleged violation to file a complaint with the Secretary of Labor, which can be done on paper or electronically through OSHA’s website. The Rule sets forth the procedure for a complaint to be reviewed and for parties to file objections or request a hearing by an administrative law judge.  For a detailed outline on timing of the complaint, investigation, and judicial review process, employers should review the text of the Rule.

Action Items

  1. Review the text of the Final Rule here.
  2. Review policies and procedures to ensure employees are not discriminated against for receiving financial assistance through the Exchange, or for reporting violations of the ACA.
  3. Train management staff on how to respond to complaints and prevent retaliation.
  4. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2016 ManagEase, Incorporated.

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