By Adam R. Young and Craig B. Simonsen

shutterstock_144257470Seyfarth Synopsis: The Affordable Care Act faces an uncertain future under the Trump administration, which will affect whistleblower provisions enforced by OSHA.

In October 2016, the Occupational Safety and Health Administration published a final rule that established procedures and time frames for handling whistleblower complaints under the Patient Protection and Affordable Care Act (ACA), also known as ObamaCare. 81 Fed. Reg. 70607 (October 13, 2016).

In its news alert, OSHA explains that Section 1558 of the ACA gives employees a cause of action based on any adverse employment action in retaliation for receiving marketplace financial assistance when purchasing health insurance through an Exchange. It also protects employees’ right to raise concerns about employers’ conduct that they believe violates the consumer protections and health insurance reforms in Title I of the ACA.

Concerning the rules, Dr. David Michaels, the then OSHA Administrator, said “this rule reinforces OSHA’s commitment to protect workers who raise concerns about potential violations of the consumer protections established by the Affordable Care Act or who purchase health insurance through an Exchange.”

The new rule established procedures and time frames for (1) hearings before Department of Labor administrative law judges in ACA retaliation cases; (2) review of those decisions by the Department of Labor Administrative Review Board; and (3) judicial review of final decisions.

In 2013, OSHA had sought public comments on an interim final rule. The Preamble to the final rule responds to those public comments and updates the rule to “clarify the protections for workers who receive financial assistance when they purchase health insurance through an Exchange.”

OSHA’s Affordable Care Act fact sheet is intended to provide more information regarding who is covered under the ACA’s whistleblower protections, define what is protected activity, list types of retaliation, and explains the process for filing a complaint.

It remains to be seen what will happen with the ACA under the Trump administration. If Congress repeals the ACA, this will necessarily include all related whistleblower provisions enforced by OSHA.  Employers should stay attuned to developments in new health care legislation.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Whistleblower Team or the Workplace Safety and Health (OSHA/MSHA) Team.