Employers face a laundry list of obligations under the Affordable Care Act (ACA) – mandatory health insurance for full-time employees, new reporting requirements, and numerous new taxes, to name just a few. Failure to comply with these obligations may result in hefty fines, so rest assured the federal government will be actively monitoring compliance when the bulk of the law becomes effective in 2014.
The federal government is not the only one watching employers, however. Employers should also be concerned about the watchdogs in their own backyards – whistleblowing employees. The ACA prohibits an employer from retaliating against an employee because the employee reported a violation of its provisions, such as the prohibition of lifetime limits on coverage, the requirement for plans to cover preventative services with no cost sharing, and the prohibition on denying coverage due to a preexisting condition. The ACA also prohibits an employer from retaliating against an employee because the employee received a tax credit to participate in a state health insurance exchange.
On February 27, 2013, the Department of Labor published an interim final rule implementing the ACA’s whistleblower protections. The rules clarify that retaliation includes intimidating, threatening, restraining, coercing, blacklisting or disciplining an employee with respect to the employee’s compensation, terms, conditions, or privileges of employment. To be protected from retaliation, the employee does not need to prove that the employer’s conduct actually violated the law. The employee’s belief that the employer’s conduct violated the ACA can be mistaken, provided that it is held in good faith and objectively reasonable.
If an employer retaliates against an employee, then the employee can file a complaint with the Occupational Safety and Health Administration (OSHA). Complaints must be filed within 180 days after a violation of the ACA occurs. The statutory burdens of proof weigh heavily in favor of the employee. The employee must prove by a preponderance of the evidence that his or her protected activity was a “contributing factor” in the employer’s action. To escape liability, the employer must prove by “clear and convincing” evidence (a higher burden) that it would have taken the same action in the absence of the employee’s protected activity.
The Department of Labor will be accepting public comments on the rule for 60 days after the rule was published on February 27, 2013. Comments may be submitted electronically via the federal e-rulemaking portal at www.regulations.gov, or by mail or fax. For more information, visit OSHA’s website at www.osha.gov.
Contact: Nathan Pangrace