New Interim Regulations on the Affordable Care Act’s Whistleblower Protections

On February 27, 2013, the Department of Labor (“DOL”) is scheduled to publish its interim final rule regarding the whistleblower protections contained in the Affordable Care Act (“ACA”). The ACA amended the Fair Labor Standards Act to protect employees from employer retaliation for engaging in certain protected activities.

These protected activities include reporting potential violations of the ACA’s consumer protections, including the prohibition of denials of insurance due to preexisting conditions, the prohibition of lifetime dollar limits on coverage, and the requirement for most plans to cover recommended preventive services with no cost sharing. Protected activities also include the ACA’s affordability assistance provisions, for example, receiving a health insurance tax credit or cost-sharing reduction. If an employer takes retaliatory action against an employee because the employee engaged in the protected activity, the employee can file a complaint with OSHA. Examples of employer retaliation that may be found to violate the ACA include:  firing or laying the employee off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failure to hire or rehire, intimidation, making threats, reassignment affecting prospects for promotion, or reducing pay or hours.

The interim final rule establishes the procedure for the handling of whistleblower complaints, which are similar to procedures for whistleblower complaints in other industries as the ACA adopted protocol contained in the Consumer Product Safety Improvement Act of 2008. 

Some pertinent parts of the interim final rule include the following:

  • Filing of Retaliation Complaint   
    • A complaint must be filed with OSHA within 180 days of when the alleged violation occurs; 
    • The complaint may be made either orally or in writing;
    • If the complainant is unable to make the complaint in English, the complaint may be submitted in any language.
  • Investigation – The interim final rule sets forth when and how an investigation will take place, including:
    • Who is to receive notification once a complaint is filed;
    • When and how parties are to submit evidence in support of their claims, and that the complainant has a right to respond to the respondent’s submissions;
    • The complainant’s burden of proof needed to show a prima facie case to initiate an investigation:
    • However, OSHA will not conduct an investigation even if a complainant makes a showing of a prima facie case if the respondent demonstrates by clear and convincing evidence that it would have taken the same adverse action in the absence of the complainant’s protected activity.
    • If OSHA proceeds with an investigation, the complaint will be investigated in accord with the requirements set forth in the ACA and interim final rule.
  • Findings and Preliminary Orders
    • Within 60 days of filing the complaint, the DOL must issue written findings of whether there is reasonable cause that the respondent retaliated against the complainant;
    • If the DOL finds reasonable cause, it must also include a preliminary order setting forth the complainant’s relief, which may include among other things, reinstatement with back pay and interest, restore benefits or other possible relief to make the employee whole.
    • The findings must notify the parties of their right to object to the findings or preliminary order and/or request a hearing;
    • Unless a party objects to the findings or requests a hearing, OSHA’s findings/order will become the final order of the Secretary of Labor effective on the latter of 30 days after the respondent receives the findings and/or order or the compliance date set forth in the OSHA’s order. 
    • However, any preliminary order providing for reinstatement of an employee is effective immediately, regardless of any objections to the findings and/or order.
  • Litigation
    • The interim final rule sets forth the procedures for objecting to the findings and/or order to an Administrative Law Judge (“ALJ”);
    • The procedures for appealing the ALJ’s Decision and Order to the Administrative Review Board (“ARB”);
    • The procedures for seeking judicial review of the ARB’s Decision; and
    • The Complainant may file a complaint in the appropriate United States district court 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’s findings.

For more information about whistleblower complaints under the ACA, please contact your Trust Fund counsel.

By Ezekiel Carder

Legal Developments