ACA Whistleblower Claims: A New Compliance Headache
The Affordable Care Act (ACA) requires "affordable" health coverage to be offered to full-time employees, their dependents and other individuals, either through employer-sponsored group health plans or health insurance exchanges maintained by participating states or the Federal government. This requirement is effective January 1, 2014. There are penalties for non-compliance that apply to subject "large employers" who do not offer "minimum essential coverage" to their employees and dependents.
The ACA also provides protection for employees who report employer ACA violations and specifically prohibits employer retaliation against employees who receive tax credits or cost-sharing reductions for coverage obtained through a health insurance exchange (this would expose the employer to ACA financial penalties - see here for details).
The Occupational Health and Safety Administration (OSHA) issued an interim final rule effective February 27, 2013 which sets out a procedure for ACA complaints. OSHA will investigate any retaliation complaints by employees and former employees, involving employer conduct prohibited by the ACA (intimidating, restraining, coercing, blacklisting, or disciplining employees with respect to the exercise of their ACA and other employment rights). Employee complaints must be tendered to OSHA (they can be made orally) within 180 days of the alleged violations. OSHA will investigate and issue findings and a preliminary order which can be appealed to an administrative law judge for hearing and ultimately to the Federal courts. Available remedies include reinstatement of improperly terminated employees and awards of back pay, with interest, as well as damages, attorneys' fees and expert witness fees.
If the prospect of ACA whistleblower claims creates even more ACA compliance anxiety, consider the recently released "self-compliance tool" here, which is a 29 page checklist that outlines ACA compliance requirements. If you need help with the ACA checklist or other ACA compliance matters, we can assist.
Employers and HR staff will need to make sure that supervisors and managers understand that the company anti-retaliation policy now extends to ACA complaints. Appropriate revisions to existing anti-retaliation policy statements and employee handbooks also should be considered. More generally, employers subject to the requirements of the ACA will want to respond in a suitable manner to any employee complaints and publicize to employees the availability of any internal ACA complaint procedure. The bottom line is that employers need to take action now to prepare for any ACA whistleblower complaints in order to head off potential OSHA investigations and damage awards.
Golan Christie Taglia LLP
70 West Madison St.
Chicago, Illinois 60602
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