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 rules

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
• Blacklisting
• Demoting
• Denying overtime or promotion
• Disciplining
• Denying benefits
• Failing to hire or rehire
• Intimidating
• 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.

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Retaliation scenario

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.