Under the Affordable Care Act, employees unable to afford the minimum essential coverage from employers are possibly eligible for Premium Tax Credits from the Health Insurance Marketplace to assist in healthcare. This assistance has fallen into the domain of anti-discriminatory quality control, as some employees have placed retaliatory complaints against their employers, suggesting they were unfairly treated following their need for financial aid. And after much deliberation, OSHA has spoken.
The Occupational Safety and Health Administration made their final rule under Section 1558 of the Affordable Care Act last month (October 13th), making very strict rules to which employers are unable to retaliate against employees. Among them, the employee’s receipt of a Premium Tax Credit, the employee’s refusal to participate in any programs or policies that violate any part of Title I of the ACA, the employee’s pointing out of such violations to Title I of the ACA, and the employee’s participation in any proceedings or hearings regarding such violations.
While retaliation also includes discharging of employee for the aforementioned, other retaliatory acts while still employed, include but are not limited to the following: “intimidating, threatening, restraining, coercing, blacklisting, or disciplining, any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment.”
Employees have 180 days from the first encounter of a violation to file a complaint, and both involved parties must meet with OSHA. The complaints will only hold up, provided that retaliatory acts were done with the employer’s knowledge of the employee’s activity, that the employee actually participated in such protected activities, and that the adverse action occurred following the employer’s knowledge of said activity. Responses from OSHA (including an investigation) will be provided within 60 days of the complaint.
While retaliation or discrimination of any kind is intolerable, this is certainly a wake up call for employers to maintain ACA compliance.
