A great deal of controversy and media attention has certainly surrounded the Affordable Care Act (ACA), both before and after its passage. However, little if any of that attention concerned the whistleblower provisions contained within the legislation. Indeed, even now as the law is in full swing, most people likely do not realize that the ACA creates new whistleblower protections for employees who report employer noncompliance with the Act’s insurance provisions.
The ACA prohibits employers from taking adverse action against employees for reporting violations or for taking advantage of premium tax credits. Oddly enough, the Occupational Safety and Health Administration (OSHA) is actually responsible for administering this new whistleblower program:
Employees who have experienced retaliation for whistleblowing have 180 days to file a complaint with OSHA.
Once it receives a complaint of retaliation, OSHA conducts an investigation and issues a written ruling, including an order for relief if the compliant is meritorious. Relief can include such items as payment of lost wages, restoration of benefits and reinstatement.
An employer or employee that disagrees with the OSHA determination may request a hearing before a Department of Labor (DOL) administrative law judge. The judge’s decision is further appealable to the DOL Administrative Review Board.
Employees also have a cause of action in federal court if OSHA fails to make a determination in a timely fashion.
Federal regulators are far from omniscient and must rely upon concerned employees to be their eyes and ears when it comes to noncompliance and retaliation.