OSHA and the Affordable Care Act: What is that connection?

by Michael Haberman on March 19, 2013 · 1 comment

 

The Affordable Care Act may use a different definition of employee that may cover independent contractors.

The Affordable Care Act whistleblower protection is provided through enforcement by OSHA.

There is your quiz for the day. Before reading any further can you answer the question? How are OSHA and the ACA connected?

The answer

It turns out that OSHA (The Occupational Safety and Health Administration) is the “retaliation cop” for 22 different statutes, including now the Affordable Care Act (ACA). OSHA will be charged with investigating and enforcing penalties associated with incidents of retaliation associated with employees filing for and/or receiving a federal tax credit or subsidy to purchase insurance through a future health insurance exchange. Since an employer could end up paying a fine for not providing appropriate coverage OSHA issued interim whistleblower protection regulations to protect employees. The activities that are covered include:

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failure to hire or rehire
  • Intimidation
  • Making threats
  • Reassignment affecting prospects for promotion
  • Reducing pay or hour

if these activities were conducted in association with an employee seeking coverage under the ACA.

Consequences

If an employer is charged with violating the whistleblower provisions then OSHA will investigate. If the employer is found guilty of these charges they remedy may include requiring the employer to, as appropriate, reinstate the employee, pay back wages, restore benefits, and other possible relief to make the employee whole.

According to Roy Maurer of SHRM:

The rule details that the employee must demonstrate, by a preponderance of the evidence, direct or circumstantial, that the protected activity was a motivating factor—not the motivating factor—in the alleged retaliatory action. The employer then has the burden of showing, by clear and convincing evidence (a higher standard than a preponderance of the evidence), that the business would have taken the same action in the absence of the protected activity. Thus, under this rule, employers will find it more difficult to defend themselves against PPACA retaliation claims than against the typical employment discrimination case.

The OSHA ruling is only an interim one; however, it is likely that it will hold without substantial change.  There is additional information on this rule that can be found in the OSHA FACT SHEET. You can also read the SHRM article here.

I have written other posts on the ACA;

The ACA and the Independent Contractor

Two Major Facts about Small Company Healthcare

You can also ask a question in the box below or in the comment section.

  

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