OSHA Issues Final Rule on Affordable Care Act Retaliation Complaints

Author: Marta Moakley, XpertHR Legal Editor

October 17, 2016

The Occupational Safety and Health Administration (OSHA) has issued a final rule that establishes procedures and time frames for handling whistleblower retaliation complaints under the Affordable Care Act (ACA).

The ACA's provisions protect employees (to include former employees and job applicants) who receive Marketplace financial assistance (in the form of a tax credit and/or a subsidy) when purchasing health insurance through an Exchange from retaliation. In addition, the ACA protects an employee from retaliation (including threats or intimidation) for raising concerns regarding conduct that he or she believes to be in violation of the ACA, including:

  • Providing to their employer, the federal government or a state attorney general information relating to a violation of the ACA;
  • Testifying in a proceeding under the ACA; or
  • Objecting to any activity, policy, practice or task that is in violation (or the employee believes to be in violation) of the ACA.

"This rule reinforces OSHA's commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange," said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

The Assistant Secretary for OSHA is responsible for receiving and investigating complaints regarding ACA retaliation protections. OSHA published an interim final rule in February 2013, requesting public comment. The final rule addresses those comments received and establishes procedures and time frames for:

  • Employee complaints to OSHA;
  • Investigations by OSHA;
  • Appeals of OSHA determinations to an administrative law judge (ALJ) for a hearing;
  • Hearings by ALJs;
  • Review of ALJ decisions by the Administrative Review Board (ARB), which acts on behalf of the Labor Secretary; and
  • Judicial review of the Secretary's final decision.

OSHA administers the whistleblower retaliation provisions of 22 statutes, including the ACA, through its Whistleblower Protection Program. OSHA may experience an upward trend in case filings regarding these employee protections, as awareness of the ACA's anti-retaliation provisions grows in the workforce.