The Affordable Care Act (ACA) is a new headache to many employers. While it promises affordable health care plans and whistleblower protections to employees, it exposes employers to legal risks. Section 1558 of the health care reform act covers almost any employee, including part-time and seasonal workers, making them all potential whistleblowers. So if you haven’t thoroughly read a number of crucial whistleblower provisions and procedures, it’s time to familiarize yourself with those and with the act as a whole.
Whistleblower and Retaliation Protections
What exactly is the kind of protection ACA extends to virtually any employee? It generally protects workers against acts of retaliation by employers if employees report potential violations that relate to employee health plans OR receive a health insurance tax credit or cost-sharing reduction.
Such acts of retaliation are defined broadly by the law but they include the following:
- denying overtime, promotion or benefits
- reassignments that may affect likelihood of promotion
- not hiring or rehiring
- firing or laying off
- reducing pay or work hours
- making threats
Employees are given 180 days to file a complaint with the Occupational Safety & Health Administration (OSHA). Once OSHA receives the complaint, employers are given 20 days to show a clear and convincing proof that they would have done the same thing even without the protected activity. If the complaint has merit, OSHA will continue to investigate and publish their findings in writing. Large employers can even be required to reinstate an employee, pay them damages and restore their benefits.
Appeals can be made within 30 days to the Secretary of Labor. Once appealed, the Administrative Law Judge will hear the case and issue a decision, which becomes final until either party appeals to the Department of Labor’s Administrative Review Board within 14 days. Either party may further appeal with the United States Court of Appeals.
Broad Implications and Other Potential Issues
There are at least three thorny situations large employers should watch out for.
First, ACA defines “employee” broadly to include for employees, whether full-time or seasonal, and as well as applicants.
Second, an employee can “get out of jail free” just by alleging a claim with OSHA. It can further place employers in an awkward position of reinstating workers during an investigation.
Third, protections offered to employees are extremely broad. Besides protecting them against acts of retaliation, the law also provides protection to the following:
those who provide their employer or the government with information that is said to be in violation of Title 1 of the ACA
those who assist in the investigation of a potential violation
those who testify or are about to testify concerning such violation
those who refuse to participate in any task said to be in violation of the ACA
Minimize or Prevent Risks
As a large employer, you can’t simply brush aside these regulations as unreasonable. You’re dealing with a new law with some murky details so you have to take steps to minimize or prevent risks. Here’s how to get started.
Train your managers and install internal procedures for receiving and addressing complaints regarding potential violations of Title I of the ACA.
Revise your employee handbook and anti-retaliation policy and make sure these reflect changes due to the ACA. Make sure your managers and supervisors are fully acquainted with the handbook and policy.
These are just some of the effective means you can use to avoid unfounded complaints and ensure compliance with the law. You can also review the OSHA fact sheet online at: http://www.osha.gov/Publications/whistleblower/OSHAFS-3641.pdf. As always, your best defense is to study the new health care reform legislation and consult an expert.