Featured on Employment Law This Week: The Occupational Safety and Health Administration (OSHA) has issued a final rule for handling retaliation under the Affordable Care Act (ACA).

The ACA prohibits employers from retaliating against employees for receiving Marketplace financial assistance when purchasing health insurance through an Exchange. The ACA also protects employees from retaliation for raising concerns regarding conduct that they believe violates the consumer protections and health insurance reforms in the ACA. OSHA’s new final rule establishes procedures and timelines for handling these complaints.  The ACA’s whistleblower provision provides for a private right of action in a U.S. district court if agencies like OSHA do not issue a final decision within certain time limits.

Watch the segment below:

By John F. Fullerton III

As we reported on Epstein Becker & Green’s Financial Services Employment Law Blog, the Department of Labor – OSHA announced earlier this month that employees protected by the whistleblower provisions in any one of the 22 statutes administered by OSHA, from claims of retaliation under the OSH Act based on workplace safety and health complaints, to financial fraud whistleblower retaliation under the Affordable Care Act or Sarbanes-Oxley, can now file their retaliation complaints with OSHA on-line.  Specifically, in a December 5, 2013 press release, OSHA revealed a new web-based tool available for whistleblowers to submit their complaints to OSHA directly on-line, and introduced the on-line complaint form itself.

In the press release, David Michaels, the Assistant Secretary of Labor for OSHA, explained that “[t]he ability of workers to speak out and exercise their rights without fear of retaliation provides the backbone for some of American workers’ most essential protections.  Whistleblower laws protect not only workers, but also the public at large and now workers will have an additional avenue available to file a complaint with OSHA.”

The online form, which is already live, provides employees an additional, and for many a much easier, way to file a retaliation complaint to trigger OSHA’s investigative process.   Previously, employees had to mail a written complaint, visit an OSHA office in-person, or place a telephone call to 1-800-321-OSHA (6742) or to one of OSHA’s Regional or Area offices.  Now that filing a complaint is faster, more efficiency, and linked to the familiarity of the internet, we expect an increase in the likelihood that some employees, who might not otherwise have filed complaints, may now do so.

The online form asks employees to list or select from a set of choices the basic information about their complaints.  The complaints will then be followed-up on by investigators, who will contact the whistleblowers to obtain any more detailed information needed by OSHA to determine how to proceed against the employer.

This new accessibility to OSHA for whistleblowing on-line is similar to the on-line ease with which employees can provide tips regarding wrongdoing or apply for bounties under some of the same statutes, such as tips to the Securities and Exchange Commission or the Commodity Futures Trading Commission under the Dodd-Frank Act.  This on-line whistleblower retaliation form is another step in OSHA’s broader effort to make employee protections and information about those protections more accessible to the public.  For example, OSHA had already set up a webpage to educate employees about the whistleblower protections available to them.

The online complaint tool and other web-based outreach to employees is having precisely the effect that OSHA desired, as the number of whistleblower complaints filed with OSHA has grown each of the last five years (i.e., ever year under the current Administration), from 2,160 in FY 2009, to 2,920 in FY 2013.  OSHA released a comprehensive data set reflecting whistleblower activity over the past decade.  In addition to growth in the total number of complaints filed, the number of complaint determinations made by OSHA also grew substantially in 2013 – by nearly 15% to 3,272 (up from 2,865  in FY 2012).  In 2013, however, case determinations by OSHA were much more likely to be made in favor of the whistleblower than in recent years.  Still, cases that OSHA found to have “merit” continue to be rare  —  only 2.3% (or 76 complaints) in FY 2013 were found to have merit.

Continue Reading OSHA Introduces On-Line Filing Tool to Facilitate More Whistleblower Complaints

By Elizabeth Bradley, Kara M. Maciel & Adam Solander

In breaking news, the Obama Administration has acknowledged the significant regulatory burdens that the Affordable Care Act’s January 1, 2014 deadline would place on employers.  Specifically, the Administration announced that in view of the complexity of the rules and reporting requirements, it is  postponing for one year, until at least 2015, the requirement that businesses cover their workers under Obamacare (i.e., there will be no penalties the first year on businesses that do not cover workers).  The move does not affect the individual mandate  and it does not affect the establishment of the Exchanges.
The Treasury Department, which enforces the law, said in its own blog post:
“The Administration is announcing that it will provide an additional year before the ACA (Affordable Care Act) mandatory employer and insurer reporting requirements begin.  This is designed to meet two goals.  First, it will allow us to consider ways to simplify the new reporting requirements consistent with the law.  Second, it will provide time to adapt health coverage and reporting systems while employers are moving toward making health coverage affordable and accessible for their employees.”
We understand that regulatory guidance will be forthcoming this week, and we will provide updates as soon as information becomes available. Stay tuned to EBG’s blogs and www.ebglaw.com for more breaking news about the ACA.

By Paul Friedman and Meg Thering

Most prudent employers have begun efforts to ensure compliance with the Patient Protection and Affordable Care Act (“ACA”), which is bringing about myriad changes with which employers must comply.  Many employers are evaluating their employee populations, deciding whether it makes economic sense to continue offering coverage, and performing self-audits to ensure compliance.  Employers should also be aware that the Department of Labor has already started auditing employers for compliance.  What many employers may not be aware of, however, is that employees may bring whistleblower claims for violations of the ACA – and these claims will be policed by the Occupational Safety and Health Administration (“OSHA”).

The ACA prohibits retaliation against employees (as defined by the Fair Labor Standards Act) for receiving cost sharing reductions or tax credits on a Health Insurance Exchange (or Marketplace), and it prohibits retaliation against employees who report alleged violations of Title I of the ACA.  Employees who believe they have been retaliated against in violation of these rules can file a complaint with OSHA within 180 days of the alleged violation.  Here is a link to OSHA’s Fact Sheet providing more information about these provisions.

OSHA’s Fact Sheet explains: “To further these goals, the Affordable Care Act’s section 1558 provides protection to employees against retaliation by an employer for reporting alleged violations of Title I of the Act or for receiving a health insurance tax credit or cost sharing reductions as a result of participating in a Health Insurance Exchange, or Marketplace.”

The period just closed (on April 28, 2013) for comments on the interim final rule published by OSHA of “Procedures for the Handling of Retaliation Complaints Under Section 1558 of the Affordable Care Act.” Continue Reading OSHA to Police Whistleblower Claims under the Affordable Care Act

By Greta Ravitsky

The Labor and Employment practice at Epstein Becker Green publishes a regular newsletter called “Take 5: Views You Can Use,” which addresses 5 L&E topics around a related subject.  The January 2013 edition of Take 5 includes some important workplace health issues associated with implementation of the Affordable Care Act (ACA), so we are providing a link to it here on the OSHA Law Update Blog.

In this month’s Take 5 newsletter, one of EBG’s Houston office Labor and Employment Partners, Greta Ravitsky, summarizes five important actions for employers to consider, as the Department of Labor steps up its audit efforts in connection with the Affordable Care Act implementing regulations, including:

  1. Assessing the Workforce
  2. Choosing Whether to “Pay” or to “Play”
  3. Evaluating Existing Wellness Programs and/or Implement New Wellness Programs to Enhance Employees’ Health Profiles and to Avoid or Minimize the “Cadillac Tax”
  4. Understanding and Being Ready to Comply with New Tax-Related Changes and Requirements
  5. Conducting Self-Audits to Ensure Compliance

 

Here is an excerpt from the newsletter:

With the U.S. presidential election behind us, it is clear that the Patient Protection and Affordable Care Act (“Affordable Care Act”) is likely here to stay, having survived a U.S. Supreme Court case challenge last June. While affected employers can avoid facing penalties until 2014 for not making health care coverage available to their workforce, the U.S. Department of Labor (“DOL”) has begun auditing employers’ group health plans for compliance with other requirements of the law that are already in effect. As the DOL steps up its audit efforts under the leadership of the reenergized Obama administration, below are five actions that employers should consider taking in 2013.

Read the full version on EBGlaw.com.