Enter to open, tab to navigate, enter to select
OSHA Rules Address Retaliation Complaint Procedures under the ACA
Practical Law Legal Update 9-524-4135 (Approx. 5 pages)
OSHA Rules Address Retaliation Complaint Procedures under the ACA
by PLC Employee Benefits & Executive Compensation
| Published on 25 Feb 2013 • USA (National/Federal) |
The Department of Labor's Occupational Safety and Health Administration (OSHA) has issued interim final rules addressing the handling of retaliation complaints under the Affordable Care Act (ACA). Among other things, the rules include procedures and timeframes for employee complaints, investigations by OSHA, administrative review procedures and judicial review of final administrative decisions.
On February 22, 2013, the Department of Labor's Occupational Safety and Health Administration (OSHA) issued interim final regulations addressing procedures for handling retaliation complaints under the Patient Protection and Affordable Care Act (PPACA), as amended (the Affordable Care Act (ACA)). The ACA amended the Fair Labor Standards Act (FLSA) to prevent employers from retaliating against employees for receiving a subsidy or tax credit related to the health insurance exchanges (see Article, Health Insurance Exchange and Related Requirements Under the ACA). Because certain employers can be assessed a tax penalty if their employees receive a credit through the exchange, a potential incentive exists for employers to retaliate against employees who receive a credit.
The ACA protects employees against retaliation because they:
- Provided, or are about to provide, information to their employer, federal government or a state attorney general relating to a violation of, or an act or omission that the employee reasonably believes is a violation of, any provision of Title I of the ACA.
- Testified, or are about to testify, in a proceeding about a violation.
- Assisted or participated, or are about to assist or participate, in a proceeding about a violation.
- Objected to or refused to participate in any activity, policy, practice or assigned task that the employee reasonably believed was a violation of any provision of Title I of the ACA, or any order, rule, regulation, standard or ban under Title I.
Title I includes:
- The prohibition on lifetime limits on coverage (see Practice Note, Lifetime Limits, Annual Limits, and Essential Health Benefits Under the ACA).
- Required first-dollar coverage of preventive services (see Practice Note, Coverage of Preventive Health Services Under the ACA).
- The requirement to provide summaries of benefits and coverage (see Practice Note, Summaries of Benefits and Coverage Under the ACA).
- Required coverage of adult children to age 26 (see Practice Note, Coverage for Adult Children to Age 26 Under the ACA).
Prohibited retaliation includes discriminating, intimidating, threatening, restraining, coercing, blacklisting or disciplining an employee with respect to his compensation, terms, conditions or privileges of employment because the employee engaged in any of the activities described above.
Starting in 2014, employees will be protected from retaliation (for example, by restricting or ending the coverage) not only by their employer, but by insurers that provide employer-sponsored health coverage to employees.
The ACA adopts the procedures, notifications, burdens of proof, remedies and statutes of limitations in the Consumer Product Safety Improvement Act of 2008 (CPSIA) (see Legal Update, Final Regulations Issued on the Consumer Product Safety Improvement Act of 2008's Whistleblower Provisions). These procedures can include:
- An employee's filing of a complaint with the Secretary of Labor (Secretary).
- An investigation and written findings by the Secretary, which can include a preliminary order requiring the employer (upon a finding of reasonable cause that retaliation has occurred) to take steps to correct the violation (for example, reinstating an employee to his former position, with compensation and backpay).
- A 30-day period for the employer and employee to file objections to the findings or preliminary order, and to request a hearing before an administrative law judge.
- Review of the employee's complaint by a district court.
The regulations generally implement the CPSIA procedural framework, as it has been interpreted in other whistleblower regulations and caselaw. For example, an employee can file an action for de novo review by a district court if there has been no final decision by the Secretary within:
- 210 days of the filing of a complaint.
- 90 days after receiving a written determination (that is, the Secretary's written findings at the close of an OSHA investigation).
Practical Impact
The ACA's retaliation rules do not diminish an employee's rights, privileges or remedies under:
- Federal or state law.
For example, the ACA retaliation rules are in addition to ERISA Section 510, which prohibits employers from retaliation that includes discharging, fining, suspending, disciplining or discriminating against a participant or beneficiary for exercising a right to which he is entitled under the terms of a benefit plan or Title I of ERISA (see Practice Note, Title I of the Employee Retirement Income Security Act (ERISA): Overview).