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.”

Employers with an employee population that might be eligible for tax credits or subsidies on the Exchange, and who are planning to not offer affordable health insurance of a minimum value next year, should ensure that employees who get such tax credits face no retaliation.  Employers who are considering providing a small financial incentive to such employees to not apply for assistance on the Exchange should re-think such plans, as doing so may be considered retaliation under the terms of OSHA’s interim final rule (although, like many aspects of the ACA, whether it actually will be considered retaliation is unclear at this point).

Additionally, when making coverage decisions, employers should be aware of the anti-discrimination provisions contained in section 510 of ERISA, which make it unlawful to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which the employee is entitled under the provisions of the plan or by law.  Employers considering removing currently enrolled employees to reduce headcount should make sure they do not violate section 510 (or any other sections) of ERISA when doing so.