The Department of Labor’s Occupational Safety and Health Administration has published a final rule establishing procedures, time frames and burdens of proof for handling whistleblower complaints under the Affordable Care Act (ACA).
The ACA amended Section 18C of the Fair Labor Standards Act to protect employees from retaliation for receiving federal financial assistance when they purchase health insurance through an Exchange. It also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms found in Title I of the ACA.
This rule establishes procedures and time frames for hearings before Department of Labor administrative law judges in ACA retaliation cases; review of those decisions by the Department of Labor Administrative Review Board; and judicial review of final decisions. Significant provisions in the final rule, and implications for employers include:
- As with other retaliation claims, the complainant need not prove that the initial complaint, which they allege triggered the retaliation, pertained to an actual violation of law. They only need to show that they had a good faith belief that they were complaining about a violation of law.
- To establish a prima facie case of retaliation for receiving a subsidy or premium assistance through an Exchange, an employee merely needs to show that an adverse action took place shortly after the protected activity.
- This will be a very easy burden to meet where the employer has knowledge that the employee was receiving a subsidy or premium assistance. For example:
- an employee might ask the employer about the coverage available through his employment, for the purpose of applying for a subsidy through the Exchange.
- in addition, under the ACA, when an exchange provides a premium subsidy it is supposed to notify the employer. This will provide the employer specific notice that the employee has requested or is receiving a subsidy.
- the employer’s knowledge of the above could prove fatal to the employer’s defense of a retaliation claim, unless the employer scrupulously segregates such knowledge from those making employment decisions.
- Once a claimant establishes a prima facie case, the burden shifts to the employer to establish by clear and convincing evidence that it would have taken the adverse action even if the protected activity had not occurred. This is a very high standard.
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The Final Rule
OSHA’s Affordable Care Act fact sheet provides more information regarding who is covered under the ACA’s whistleblower protections, protected activity, types of retaliation, and the process for filing a complaint.