OSHA Publishes ACA Whistleblower Rule

The Occupational Safety and Health Administration (OSHA) has published an interim final rule that governs whistleblower complaints filed under Section 1558 of the Affordable Care Act (ACA). The ACA contains various provisions to make health insurance more affordable and accountable to consumers. Among the policies to achieve its goals, Section 1558 of the Act provides protection to employees against retaliation by an employer for reporting alleged violations for receiving a tax credit or cost-sharing reduction as a result of participating in a Health Insurance Exchange or Marketplace. Certain large employers who fail to offer affordable plans that meet the minimum requirements may be assessed a tax penalty if any of their full-time employees receive a premium tax credit through the Exchange. Thus, the relationship between the employee’s receipt of a credit and the potential tax penalty imposed on an employer could create an incentive for an employer to retaliate against an employee.

The ACA also includes a range of insurance company accountability policies, such as the prohibition of lifetime limits on coverage and exclusions due to pre-existing conditions. If an employee reports a violation of one of these policies or requirements, the act's whistleblower provision prohibits employers from retaliating against the employee. Such retaliating actions may include:

• Firing or laying off
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failure to hire or rehire
• Intimidation
• Making threats
• Reassignment affecting prospects for promotion
• Reducing pay or hours

If an employee is retaliated against in violation of the whistleblower provision, he or she may file a complaint with, and ultimately receive relief from, OSHA or the courts. Complaints must be filed within 180 days after an alleged violation occurs.

To view the Interim Final Rule click here.