The Affordable Care Act (ACA) contains various provisions to make health insurance more affordable and accountable to consumers. To further these goals, the ACA amended the Fair Labor Standards Act (FLSA) to include whistleblower protections for employees. Under these whistleblower protections, employees are protected from retaliation for:
Reporting alleged violations of Title I of the ACA; or
Receiving a health insurance tax credit or a cost-sharing reduction when enrolling in a qualified health plan through an Exchange.
Title I of the ACA includes many of the reforms applicable to group health plans, such as the prohibitions on lifetime and annual limits, pre-existing condition exclusions, excessive waiting periods and rescissions. It also includes the requirement to provide a summary of benefits and coverage (or SBC) and the claims appeals process requirements.
This ACA Overview provides a summary of the ACA’s whistleblower protections for employees.
Covered Employers and Employees
The definitions “employer” and “employee” under the ACA’s whistleblower provision are found in the FLSA. Therefore, this provision prohibits retaliation by private and public sector employers.
An employer may not discharge or in any manner retaliate against an employee because he or she:
Provided information relating to any violation of Title I of the ACA, or any act that he or she reasonably believed to be a violation of Title I of the ACA to the employer, the federal government or a state’s attorney general;
Testified, assisted or participated in a proceeding concerning a violation of Title I of the ACA, (or is about to do so); or
Objected to, or refused to participate in, any activity that he or she reasonably believed to be in violation of Title I of the ACA.
In addition, an employer may not discharge or in any manner retaliate against an employee because he or she received a tax credit or a cost-sharing reduction for health coverage purchased through an Exchange (or Marketplace).
If an employer takes retaliatory action against an employee because he or she engaged in any of these protected activities, the employee can file a complaint with OSHA.
Unfavorable Employment Actions
An employer may not take unfavorable employment action against an employee based on the employee’s protected activity. Specifically, an employer may be found to have violated the ACA if the employee’s protected activity was a contributing factor in the employer’s decision to take unfavorable employment action against the employee.
Unfavorable employment actions may include:
Firing or laying off;
Denying overtime or promotion;
Failure to hire or rehire;
Reassignment affecting prospects for promotion; and
Reducing pay or hours of work.
Deadline for Filing Complaints
Retaliation complaints must be filed within 180 days after an alleged violation of the ACA occurs. An employee who believes that he or she has been retaliated against in violation of the ACA may file a complaint with OSHA. An employee’s representative may also file a complaint on the employee’s behalf.
How to File an ACA Retaliation Complaint
An employee can file an ACA complaint with OSHA by:
Visiting or calling the local OSHA office (visit OSHA’s website or call 1-800-321-6742 for OSHA area office contact information); or
Sending a written complaint to the closest OSHA regional or area office. Written complaints may be filed by facsimile, electronic communication, hand delivery during business hours, U.S. mail (confirmation services recommended) or other third-party commercial carrier.
The date of the postmark, facsimile, electronic communication, telephone call, hand delivery, delivery to a third-party commercial carrier or in-person filing at an OSHA office is considered the date filed. No particular form is required and complaints may be submitted in any language.
Upon receipt of a complaint, OSHA will first review it to determine whether there is a valid complaint allegation (for example, timeliness or coverage). Complaints are then investigated in accord with the statutory requirements.
Results of the Investigation
If the evidence supports an employee’s claim of retaliation and a settlement cannot be reached, OSHA will issue an order requiring the employer to (as appropriate) reinstate the employee, pay back wages, restore benefits and provide other possible relief to make the employee whole.
OSHA’s findings and order become final within 30 days, unless they are appealed within that time period. After OSHA issues its findings and order, either party may request a full hearing before an administrative law judge of the DOL. The administrative law judge’s decision and order may be appealed to the Department’s Administrative Review Board.
If a final agency order is not issued within 210 days from the date the employee’s complaint is filed or within 90 days after the employee receives OSHA findings, then the employee may file a complaint in the appropriate U. S. district court, with a copy provided to OSHA.
More information is available at www.whistleblowers.gov or www.oalj.dol.gov.
This ACA Overview is not intended to be exhaustive nor should any discussion or opinions be construed as legal advice. Readers should contact legal counsel for legal advice.