Blog: The California Workplace Advisor

Another whistleblower regulation has hit the books that may snare the unwary employer.  The federal Occupational Safety and Health Administration (OSHA) recently published an interim final rule governing the handling of whistleblower retaliation complaints under the Affordable Care Act, President Obama’s signature health care law (which some call ObamaCare).

Many employers are likely unaware that the ACA includes a provision that allows employees to bring retaliation and whistleblower claims against their employers.  While the ACA is primarily aimed at decreasing the number of uninsured Americans and reducing health care costs, it also contains protections for whistleblowing employees who report to their employer, the federal government, or state attorney generals any alleged consumer protection violations of the ACA and are thereafter subjected to an unfavorable employment action.  Employers cannot retaliate against employees who receive a federal tax credit to buy insurance through their employer or who participate in a future health insurance exchange to offset health care costs.  And, employers cannot take an unfavorable employment action against employees who complain about the denial of health coverage to those with pre-existing conditions or the imposition of lifetime limits on insurance coverage.  Prohibited unfavorable employment actions include termination, reducing pay or hours, demotion, denial of benefits, denial of overtime, failure to promote, and making threats.  Those assisting with any proceeding under this law, such as witnesses or those interviewed by OSHA, are also protected by the retaliation provisions.

An aggrieved employee must file a retaliation charge with OSHA within 180 days.  Once OSHA receives a charge of retaliation, it will determine if the employee reasonably believed that his employer violated the law when the employee blew the whistle.  OSHA will require that the complaining employee acted in good faith and actually believed that the conduct at issue violates the ACA.  The agency will examine if the employee acted in good faith by considering the knowledge available to a reasonable person in the same factual circumstances with the same training and experience as the aggrieved employee.  As is the case with whistleblowing cases under comparable employment laws, an employee does not need to demonstrate that the conduct complained of actually constitutes a violation of the law.

OSHA will dismiss a whistleblower complaint in the preliminary investigation process if (1) the employee fails to show that the protected activity (either the complaint or the employee’s exercise of the ACA’s means to control healthcare costs) was a contributing factor in the unfavorable employment action; or (2) the employer rebuts the employee’s claim through clear and convincing evidence that it would have taken the same adverse action absent the protected activity.  The clear and convincing standard is a high burden to meet.   If OSHA pursues the case beyond its initial investigation, the employee must prove that the alleged protected activity was a contributing factor (or, any factor, alone or in connection with other factors tends to affect in any way the outcome of the decision) in the alleged adverse action.  Once the employee meets this burden, the employer must prove by clear and convincing evidence that it would have taken the same action in the absence of the protected activity in order to avoid liability.   Should OSHA find a violation, the employer must make the employee whole, including back pay, reinstatement, or other relief the administration finds necessary.  If a party disagrees with OSHA’s findings, they may appeal to the Department of Labor for a hearing before an administrative judge.   Litigation in federal courts is still feasible, however, as the ACA gives the employee the right to file a complaint in United States District Court if OSHA does not issue a final agency order within 210 days from the date the complaint is filed or 90 days after the employee receives OSHA’s findings.

OSHA’s rule is effective now, but may be revised following a 60-day window for public comments.  This regulation only adds to the numerous protections already afforded whistleblowers under discrimination, safety, and wage and hour laws, to name a few.  Employers should be mindful of this addition and be certain that any adverse employment action does not stem from an employee’s complaint about violations of the ACA, or their use of the insurance credits afforded by ObamaCare.