This blog post was authored by Jessica R. Frier
Employers should update their whistleblowing, anti-harassment and anti-retaliation policies to reference new protections provided to employees by the Affordable Care Act (“ACA”).
What is Prohibited? ACA’s anti-retaliation provisions prohibit an employer from retaliating against an employee who:
- Receives a health insurance tax credit or subsidy through Covered California (aka the “Marketplace” or “exchange”);
- Reports potential violations of protections afforded under Title I of the Act, which provides guaranteed availability protections among other things;
- Testifies in a proceeding concerning such violation;
- Assists or participates in a proceeding concerning a violation; or
- Objects to, or refuses to participate in, any activity, policy, practice, or assigned task that the employee reasonably believes to be in violation of any provision of Title I of the Act.
What is “Retaliation”? An employment action is considered retaliatory if it discriminates against any employee with respect to compensation, terms, conditions, or other privileges of employment. “Retaliation” can include termination, demotion, denial of overtime, denial of promotion or other benefits, failure to hire or rehire, intimidation, reassignment, discipline, blacklisting, and the reduction of pay or hours.
What is Protected? An employee is only protected for the above actions relating to Title I of ACA. ACA’s Title I requirements involve the Employer Shared Responsibility provisions (by which an employee who obtains coverage in an exchange can trigger a penalty payable by the employer). Title I also includes (but is not limited to) additional consumer protection reforms such as:
- Elimination of lifetime and annual limits on benefits by 2014;
- Prohibition of rescissions of health insurance policies;
- Elimination of pre-existing condition exclusions;
- Coverage of preventive services and immunizations;
- Extension of dependent coverage up to age 26;
- Development of uniform coverage documents; and
- Implementation of appeals processes for consumers.
Who is in Charge? The Department of Occupational Safety and Health Administration (“OSHA”) will enforce ACA’s anti-retaliation provisions. An employee who believes he or she has been retaliated against must complain within 180 days by an in-person visit or telephone call to a local OSHA office, or by sending a written complaint. Upon receipt of the complaint, the Assistant Secretary for OSHA will notify the employer of its rights. The employer will have 20 days after receiving notice of the complaint to file a written statement, affidavits or documents in support of its position. The employer may also request a meeting with the Assistant Secretary to present its position. OSHA will determine if the complaint is sufficient, investigate the complaint and issue a decision. There is a procedure for employers to appeal OSHA’s decision. More information is available at: https://www.osha.gov/Publications/whistleblower/OSHAFS-3641.pdf
What are an Employee’s Remedies For Retaliation? Remedies include reinstatement, affirmative action to abate the violation, back pay with interest, front pay, compensatory damages, and an award of up to $1,000 for attorneys’ fees.
What’s Next? Employers should review their personnel policies and internal training procedures. Employers should consider revising policies and procedures to prohibit retaliating against an employee for any activity protected under Title I of ACA. Employers should also ensure that management and supervisory personnel are well trained in these ACA provisions and in procedures for appealing complaints to OSHA.