OSHA Rules Flesh out Health Reform’s Whistleblower Provisions

The rules flesh out whistleblower provisions designed to protect employees retaliated against for reporting potential violations of reform’s consumer protections or affordability assistance provisions. Specifically, the rules establish procedures and time frames for handling retaliation complaints, OSHA investigations, appeals of OSHA determinations to an administrative law judge, ALJ hearings, reviews of ALJ decisions by an administrative review board and judicial reviews of the agency’s final decision.

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act of 1970 and 21 other statutes.

Background

The health reform law amended the Fair Labor Standards Act to add section 18C to protect employees against retaliation by an employer for engaging in certain protected activities. An employer may not retaliate against an employee for receiving a premium tax credit or cost-sharing reductions while enrolled in a qualified health plan through a health insurance exchange if the employer does not offer a coverage option that is affordable and provides a minimum value. The rules note that certain large employers that fail to offer MV plans may be assessed a tax penalty if any full-time employees receive a premium tax credit through the exchange.

“Thus, 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,” according to the preamble.

Section 18C also protects employees against retaliation because they: (1) provided or are about to provide to their employer, the federal government or state attorneys general information relating to any violation of reform’s coverage mandate, guaranteed availability and nondiscrimination provisions; (2) testified or are about to testify in a proceeding related to the violation; (3) assisted or participated, or are about to assist or participate, in such a proceeding; or (4) or objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be a violation.

In 2014, such protections will extend to cover retaliation regarding an employee’s compensation, terms, conditions or other privileges of employment by health insurance issuers — regardless of whether those issuers employ the person (currently, the retaliation provisions only apply to the insurer’s own employees).

“An employee will be protected from retaliation (e.g., having that issuer limit or end health insurance coverage), not only by her employer, but also by the insurance issuer that provides employer-sponsored health insurance coverage to the employee,” the preamble explained.

Comments Sought OSHA is seeking comments on the whistleblower provisions. The comment period ends 60 days after the rules are published in the Federal Register. Comments can be submitted electronically at http://www.regulations.gov, by mail or fax (reference Docket No. OSHA-2011-0193). OSHA has a fact sheet available here.