Are you familiar with Fed-OSHA’s regulations on whistleblowing and employer retaliation under the Affordable Care Act.
The rules set forth procedures and time frames for reporting and processing whistleblower complaints by employees against their employers and expand the instances in which an employee can sue their employer for retaliation under the ACA.
OSHA has set a low bar for what it considers retaliation in these regulations.
The biggest threat to an employer is if they have employees who may file complaints if they feel slighted after their employer change their health plans or greatly increase the cost-sharing burden on them.
The ACA whistleblower regulations prohibit employers from retaliating against employees for, among other things:
- Receiving a subsidy for a marketplace plan;
- Raising concerns regarding employer practices that the employee believes violate the ACA;
- Reporting ACA violations;
- Cooperating with a federal investigation;
- Participating and/or cooperating in a proceeding associated with an alleged or actual violation;
- Refusing to participate in a policy or practice that would violate the ACA; and
- Receiving a premium tax credit or a cost-sharing reduction for enrolling in a qualified health plan.
An employee who believes that he or she has been retaliated against in violation of Title I of the ACA has 180 days after the alleged retaliation to file a complaint with OSHA.
What constitutes retaliation?
Retaliation can include several types of action, such as:
- Firing or laying off
- Reducing pay or hours
- Denying overtime or promotion
- Denying benefits
- Failing to hire or rehire
- Making threats
- Job reassignment that affects prospects for promotion
OSHA has published the “Filing Whistleblower Complaints under the Affordable Care Act” factsheet on the complaint process. As an employer you should read it to understand the rules. You can find them here: https://www.osha.gov/Publications/whistleblower/OSHAFS-3641.pdf
Employer best practices
Make sure that managers and HR personnel ensure strict confidentiality for employees’ ACA-related information and do not share it with other managers and supervisors.
Cover the regulations in your training and meetings for HR personnel, who in turn should train managers to ensure they understand the consequences of taking actions that may be construed as retaliatory.
Train managers on how to respond if an employee complains about their health insurance in light of the ACA. In such cases, the manager should refer the complaint to the HR or benefits personnel responsible for the company’s health insurance plan.
Your HR department is notified by the Department of Health and Human Services that an employee has purchased coverage on a public insurance exchange and received tax subsidies to help pay for it.
An HR manager goes to the employee’s manager to complain, saying that it could cost the company a $2,000 penalty. The manager finds an excuse to reduce the employee’s hours and reassign him to a lesser position.
As the first association plans start gaining traction, trade journals are reporting that many of the plans they are offering are not as skimpy as many had predicted they would be.
The rules enacted for these plans allow them to skirt certain requirements of the Affordable Care Act, specifically that they cover 10 essential benefits, and still qualify as plans that satisfy the requirement that employers provide their staff with coverage.
Under the new rules, association plans can be formed across state or nationwide by letting employers band together (and act like one large employer) based on:
- Geography (all have a principal place of business in a state [or portion of a state, such as a city or county] or in the same metropolitan area, even if the metropolitan area spans more than one state).
- Industry (be from the same trade, industry, line of business, or profession).
The old Obama-era regulations made it difficult for association plans to meet ERISA’s large-employer insurance requirements. The Department of Labor estimates that some 4 million people could be covered under association plans in the coming years.
A surprise development
Yet, despite these plans having fewer restrictions on them, most of the new association plans are actually compliant after all and are not skimping on benefits as many pundits had predicted, according to press coverage.
The trade journal Modern Healthcare reports that most of the first association plans that are being formed are not charging people different premiums based on their health conditions or barring people with pre-existing conditions from enrolling.
It also notes that plan sponsors report that the plans cover all of the essential benefits outlined under the ACA, and even provide broad networks of doctors. The ACA also requires that plans do not impose annual or lifetime limits on coverage, and the plans coming out of the gates also comply with that aspect of the law.
Modern Healthcare’s reporting also found that despite all that, the plans’ premium levels are lower than what individuals can buy on government-run exchanges.
Farmer-owned cooperative Land O’Lakes, several Nevada chambers of commerce, and the National Restaurant Association have formed association plans this year and are expanding them now.
Modern Healthcare reported on Land O’Lakes farmer-owned cooperative’s self-insured association plan, which now covers two states (Nebraska and Minnesota) and is continuing to expand into other states.
The co-op said that its plans cost 25% to 35% less than comparable exchange plans in Nebraska, and about 12% less than plans on the exchange in Minnesota.
The magazine reviewed the plan documents for Land O’Lakes’ eight Nebraska plans, comprising a platinum-level plan, one gold plan, and three silver and three bronze options.
“They feature a range of deductibles and appear to provide coverage for each category of essential health benefits including prescription drugs, maternity care and mental health and substance abuse treatment,” it reported.
The Nebraska Farm Bureau is also rolling out an association plan for its members starting in 2019, and based on early figures, its premiums are 25% less than comparable individual plans on the state’s insurance exchange.
These plans also cover all of the essential benefits and do not charge more for people with pre-existing conditions, Modern Healthcare reported.
Also, a number of local chambers of commerce banded together in Nevada to form a fully insured association HMO plan with premiums that are about 20% less than similar plans on the exchange.