The Occupational Safety and Health Administration (OSHA) has issued an interim final rule and request for comments implementing the whistleblower provisions of the Affordable Care Act (ACA). OSHA enforces the whistleblower provisions in 22 statutes, including § 1558 of the ACA. This ACA provision added § 18C to the Fair Labor Standards Act (FLSA) that expressly prohibits an employer from retaliating against an employee for, among other things, receiving a federal tax credit or subsidy to purchase insurance through the employer or a future health insurance exchange; reporting a potential violation of ACA’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 proceeding under this whistleblower law. The interim final rule sets forth the procedures and timeframes for handling retaliation complaints under §18C, including the agency’s investigation, hearing, and appeals procedures.

The ACA whistleblower procedures are similar to those OSHA established to enforce other whistleblower statutes under its jurisdiction. Specifically, section 18C(b)(1) adopts the procedures, notifications, burdens of proof, remedies, and statutes of limitation in the Consumer Product Safety Improvement Act of 2008 (CPSIA). Final rules implementing the CPSIA were issued in July 2012. Thus, as under both statutes, an employee has 180 days from the alleged retaliation in which to file a whistleblower complaint with Secretary of Labor. Remedies for violating the ACA anti-retaliation provisions include reinstatement, compensatory damages, back pay, as well as all costs and expenses (including attorney fees and expert witness fees) reasonably incurred in filing the complaint. If the Secretary deems the complaint to have been brought in bad faith, it may award the employer up to $1,000 in reasonable attorney’s fees.

The employee need only have a subjective, good faith, and objectively reasonable belief that the complained-of conduct violates the whistleblower protections. However, the employee does not need to prove that the conduct complained of constitutes an actual violation of law. As for the burden of proof, a complainant must make an initial showing that the protected activity was a contributing factor in the adverse employment decision. An employer would then have to show by clear and convincing evidence that it would have taken the same adverse action absent the protected activity. As discussed in the rule, the “clear and convincing evidence” standard is a higher burden of proof than a “preponderance of the evidence” standard.

OSHA’s findings and order with respect to a whistleblower complaint becomes final unless appealed within 30 days. Either party may request a hearing before an administrative law judge, whose decision may be appealed to the DOJ’s Administrative Review Board. An employee would be entitled to file a complaint in federal court if a final agency order is not issued within 210 days of the filing of the initial complaint, or within 90 days after the employee receives OSHA’s findings.

The DOL has made available a fact sheet that outlines how to file a whistleblower complaint under ACA. This fact sheet provides details on who is covered by the whistleblower statute, which activities are protected, what is considered an unfavorable employment action, the deadlines and procedures for filing a complaint, and additional agency contact information.

Comments on this interim final rule must be submitted within 60 days of the rule’s publication in the Federal Register, which is scheduled for Wednesday, February 27, 2013. Comments may be submitted electronically through the federal eRulemaking portal, or, if not exceeding 10 pages, via fax to the OSHA Docket Office at 202-693-1648. Written comments may also be sent by mail or hand-delivery to: OSHA Docket Office, Docket No. OSHA — 2011-0193, U.S. Department of Labor, Room N-2625, 200 Constitution Ave. NW, Washington, DC 20210.

Photo credit: Courtney Keating