How Health Care Reform Act Protects Whistleblowers

BARB RAND
HNI Compliance Advisor

Along with changing the face of health benefits, the Affordable Care Act also offers whistleblower protection to employees.

Public and private sector employees may report employer violations to OSHA and be entitled to protection from employer retaliation under health care reform.

2 Types of Protected Activity

There are two main types of employee activity that's protected as whistleblowing. An employer cannot retaliate against an employee for:

1.) Reporting an employer's alleged violation of Title I of the Affordable Care Act. Title I, in part, prohibits lifetime limits and health coverage exclusions because of pre-existing conditions. An employee also cannot be retaliated against for refusing to participate in any activity that violates Title I.

2.) Participating in a public health exchange. This includes receiving a health insurance tax credit or cost sharing reductions.

2 Ways to File a Complaint

To file a complaint, a whistleblower can:

1.) Visit or call a local OSHA office. Find a local OSHA office by calling 1-800-OSHA (6742) or by visiting www.whistleblowers.gov.

2.) Provide a written complaint. A written complaint can be filed by fax, email, hand delivered during office hours, or mailed.

There is no required form for filing a whistleblower complaint, and a complaint can be filed in any language.

What Does Retaliation Look Like?

An OSHA fact sheet on the ACA whistleblower protection identifies the following employer actions as retaliatory:

Firing or laying off
Blacklisting
Demoting
Denying overtime or promotion
Disciplining
Denying of benefits
Failure to hire or rehire
Intimidation
Making threats
Reassignment affecting prospects for promotion
Reducing pay or hours

If OSHA is convinced by the employee's evidence of retaliation and no settlement can be reached, OSHA will issue a final order. In the final order, the employer, as appropriate, must reinstate the whistleblower, pay back wages, restore benefits, and provide possible relief to make the employee whole.

How to Appeal

OSHA's findings become final order unless they are appealed within 30 days. The first appeal is before an administrative law judge of the Department of Labor. If either party is unhappy with results of the first appeal, the administrative law judge's decision can be appealed to the Department of Labor's Administrative Review Board.

A labor law expert can guide you through additional appeals, which could, although it is highly unlikely, go all the way to the U.S. Supreme Court. The bottom line is that OSHA has mechanisms in place to make sure investigations and final orders are made in a timely manner.