Section 1558 of the Affordable Care Act (ACA) protects employees from retaliation by their employers if they report alleged violations of Title I of the ACA. Title I of the ACA includes:
- The elimination of lifetime dollar limits health coverage
- The payment of most preventative services without cost-sharing
- Beginning in 2014, guaranteed coverage without regard for pre-existing conditions and health status
- Using health status, gender, medical history and the employment industry to set premium rates
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is the administrative body chosen to investigate and administer ACA-related whistleblower claims. These new procedural rules are similar for complaints found under similar whistleblower protection regulations, such as those imposed by the Sarbanes-Oxley Act.
Employees are protected for:
- Reporting ACA violations to his/her employer or the government
- Testifying about any possible violation
- Refusing to violate the law
New minimum standard makes employee reporting easier. Take note — under new regulations recently released, an ACA retaliation complaint is not considered a “formal document” by OSHA. Therefore, it is not subject to the same pleading standards as a complaint filed in a district federal court. An ACA-related whistleblower complaint simply alerts OSHA that the employer is retaliating and wants OSHA to investigate, according to the law firm Alston & Bird.
- The employee must file the complaint within 180 days of when he/she is aware of, or reasonably should have been aware of, the retaliatory action
- The complaint need not be in writing or in English
- With the employee’s consent, any person can file a complaint on behalf of the employee
Once OSHA receives the complaint, an interview process begins with the complainant. OSHA investigators attempt to determine if the complaint alleges what OSHA defines as “the existence of facts and evidence to make a prima facie showing.” If the complaint succeeds, the employer must offer “clear and convincing” evidence that any actions taken against the employee would have been the same regardless of the protected conduct. OSHA has 60 days to determine if there is reasonable cause that a complaint has merit and to respond in writing.
If OSHA determines that a complaint has merit, it can issue an order for various forms of relief, including:
- Reinstatement of a terminated employee
- Affirmative action to “abate the violation,” according to Alston & Bird
- Back pay with interest
- Front pay – wages and benefits the employee would have been paid if he or she had not been terminated
- Compensatory damages
The employer then has 30 days to file an objection and request an administrative law judge review the decision. The employee who loses the OSHA determination can also, within 90 days, file an objection and file a retaliation suit in federal district court.
Here are few ramifications of the whistleblower provision of the ACA.
- OSHA and employers must act quickly to meet stringent timelines
- Employers’ legal and consulting fees may increase as they must seek more risk management guidance prior to making employment decisions and in responding to whistleblower complaints
- Minimal pleading standards may encourage employees to file more complaints
- Plaintiff-oriented law firms may target employees to encourage complaint reporting
What can employers do?
The ACA is a complex document. Case law will evolve quickly as administrative issues arise and courts adjudicate them. Here are a few, but certainly not all, tips that may help you as more provisions of the ACA go into effect.
- Rigorously guard employee data, including which employees may receive credits or experience other financial impacts under the ACA.
- Update and disseminate your whistleblower protections to include ACA protection in any internal documents, including anti-retaliation policies and employee handbooks.
- Train supervisors and managers regarding these important changes.
Employment issues continue to change and become more multifaceted. The addition of the ACA amplifies the emerging risks in human capital management. The ALS Group Human Capital Practice can help you mitigate human capital risks and limit your liability in the areas of employment practices, as well as ensure your organization's human capital management strategy aligns with the firm's overall business plan. Contact us for more information.
If you would like to discuss how the Affordable Care Act affects your organization or have questions on any other human capital related issues, please feel free to contact me at 732.395.4251 or firstname.lastname@example.org.