The Affordable Care Act (ACA)’s whistleblower provisions may present a hazard for unsuspecting employers. On February 27, 2013, the Department of Labor’s Occupational Safety and Health Administration (OSHA) released an interim final rule prescribing the procedures and time frames for handling whistleblower complaints filed under ACA, which prohibits retaliation against workers who report violations of the law’s consumer protections.
ACA contains various provisions to make health insurance more affordable and health insurance companies more accountable to consumers. Section 1558 of ACA amended the Fair Labor Standards Act adding Section 18C, which provides protections to employees against retaliation by an employer for reporting alleged violations of Title I of the Act or for receiving tax credits that could translate to a tax penalty for certain large employers. Title I encompasses a range of accountability requirements for insurers, such as the prohibition against lifetime limits on coverage, exclusions due to pre-existing conditions or using factors like medical history to set premium rates. It also includes expanded benefits such as the requirement for most plans to cover recommended preventative services with no cost sharing. Workers who give their employer, the federal government or a state attorney general information about acts or omissions that they reasonably believe violate Title I of ACA will be protected from retaliation.
ACA authorizes the Secretary of Labor to conduct investigations into complaints and issue determinations which are functions delegated to OSHA. OSHA’s interim final rule establishes procedures and time frames for the filing and handling of such complaints.
Retaliation complaints under 18C have to be filed within 180 days of when the alleged violation occurs. The violation is said to occur when the retaliatory decision has been made and communicated to the worker. Therefore, the limitations clock starts ticking when the employee is aware or reasonably should be aware of that decision, though the time for filing of a complaint can be tolled.
Upon receipt of the complaint, OSHA must provide written notice to the persons named in the complaint alleged to have violated the Act of the filing of the complaint, the allegations contained in the complaint, the substance of the evidence supporting the complaint, and the rights afforded the respondent throughout the investigation.
If the complainant makes the required prima facie showing and the respondent employer does not offer clear and convincing evidence that it would have handled the employee the same way absent the worker’s alleged protected activity, OSHA will investigate whether there is reasonable cause to believe that retaliation has occurred.
The assistant secretary for OSHA will issue written findings within 60 days of the filing of a complaint on whether there is reasonable cause to believe that complaint has merit. Complainants can file suit in a district court seeking de novo review within 90 days of getting that written determination or if more than 210 days pass without a final decision.