Interim Final Rules Published On ACA’s Employee Whistleblower Protections

The Department of Labor’s Occupational Safety and Health Administration (OSHA) has published an interim final rule that governs whistleblower complaints filed under Sec. 1558 of the Patient Protection and Affordable Care Act (ACA). This provision of the federal health reform law offers protection to employees against retaliation by an employer for reporting alleged violations of Title I of the Act or for receiving a tax credit or cost-sharing reduction as a result of participating in a health insurance exchange or marketplace. The interim final rule was published in the February 27 Federal Register.

Title I includes a range of insurance company accountability policies, such as the prohibition of lifetime limits on coverage and exclusions due to preexisting conditions. The ACA’s whistleblower provision prohibits employers from retaliating against the employee for reporting a violation of one of these policies or requirements. The ACA authorizes the secretary of labor to investigate complaints and issue determinations; those functions have been delegated to OSHA. Aggrieved employees can file a complaint with OSHA or the courts.

OSHA’s interim final rule establishes the procedures and time frames for the filing and handling of such complaints, including investigations by OSHA, appeals of OSHA determinations to a law judge for a hearing, review of such decisions by the ARB and judicial review of the secretary’s final decision.

The agency also has issued a fact sheet about filing whistleblower complaints under the ACA. The fact sheet is available here: http://www.osha.gov/Publications/whistleblower/OSHAFS-3641.pdf.

Comments may be submitted electronically via the federal e-rulemaking portal at http://www.regulations.gov; or by mail to Docket No. OSHA– 2011-0193, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

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