The U.S. Occupational Health and Safety Administration (OSHA) issued an interim final rule addressing whistleblower complaints under health care reform. The Affordable Care Act adds a section to the Fair Labor Standards Act prohibiting retaliation against employees who receive tax credits or cost-sharing reductions for purchasing health coverage through an Exchange. The Act also prohibits retaliation against an employee who reports an employer's violations of health care reform, testifies against an employer's health care reform compliance, or refuses to participate in an activity that the employee reasonably believes to violate the Affordable Care Act.
The government is authorized to investigate retaliation complaints and issue determinations. An employer who is found to retaliate against an employee who files a complaint or receives a tax credit can be required to reinstate the employee if terminated, pay compensatory damages and attorneys fees, and/or be responsible for back pay with interest.
A complaint must be filed with OSHA within 180 days after an alleged violation. OSHA will notify the employer of the complaint and give the employer a right to respond. OSHA will issue written findings as to if there is reasonable cause to believe the employer retaliated. Either party may object to OSHA's determination.
Employers will want to pay attention to potential retaliatory actions. Since employers may be subject to a penalty if employees receive a tax credit to purchase insurance through an Exchange (if the employer does not provide affordable coverage with a minimum value), an employer could be tempted to coerce an employee to not purchase such Exchange-based coverage. Employers will certainly want to think twice about taking such actions based on the prohibition on retaliation under the Affordable Care Act.