While employers have been focused on making sure that their health care plans meet the requirements of the Patient Protection and Affordable Care Act (PPACA), new interim whistle-blower provisions under that law recently went into effect.
The Occupational Safety and Health Administration (OSHA) issued an interim final rule and request for comments on Feb. 22, 2013, that establishes the procedures the agency will use to handle whistle-blowers’ retaliation complaints under the health care law.
The interim rule went into effect upon publication.
OSHA enforces the whistle-blower provisions in 22 statutes, including PPACA’s Section 1558. This provision expressly prohibits an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through a future health insurance exchange; reporting a potential violation of the law’s consumer-protection provisions, such as the prohibition on denying health coverage to individuals with pre-existing conditions and imposing lifetime limits on coverage; and assisting or participating in a whistle-blower proceeding.
“The relationship between the employee’s receipt of a credit and the potential tax penalty imposed on an employer could create an incentive for an employer to retaliate against an employee,” OSHA explained in the announcement.
Effective Jan. 1, 2014, the scope of the law’s coverage will be expanded to include not only employers but also health insurance issuers, regardless of whether the issuer actually employs the person alleging retaliation.
For example, employees will be protected from acts such as issuers limiting or canceling their health insurance coverage.
Consistent with the interpretation of the term “employee” in the other whistle-blower statutes that OSHA oversees, the definition of the term “employee” here also includes former employees and applicants for employment.
Burden of Proof Favors Employees
The rule details that the employee must demonstrate, by a preponderance of the evidence, direct or circumstantial, that the protected activity was a motivating factor—not the motivating factor—in the alleged retaliatory action. The employer then has the burden of showing, by clear and convincing evidence (a higher standard than a preponderance of the evidence), that the business would have taken the same action in the absence of the protected activity. Thus, under this rule, employers will find it more difficult to defend themselves against PPACA retaliation claims than against the typical employment discrimination case.
OSHA has released a fact sheet that outlines how to file a whistle-blower complaint under PPACA. This document explains who is covered by the whistle-blower statute, what activities are protected, what is considered an unfavorable employment action, and the deadlines and procedures for filing a complaint. It also provides additional agency contact information.