On October 13, 2016, the Occupational Safety and Health Administration (OSHA) published the final rule regarding retaliation claims under section 1558 of the Affordable Care Act (ACA), providing protection to employees who allege they have been subject to retaliation for receiving Marketplace financial assistance when purchasing health insurance through the Exchange or engaging in protected activity pertaining to possible violations of the consumer protections and health insurance reforms of the ACA. The final rule, which evolved from an interim final rule published in February 2013, establishes the procedures and time frames for handling these retaliation complaints.¹

No employer may discharge or otherwise retaliate against any employee who has engaged in the following activity:

• Received a credit under § 36B of the Internal Revenue Code, or a cost-sharing reduction under the ACA, or been determined by an Exchange to be eligible for advance payments of the premium tax credit (APTC) or for a cost-sharing reduction;

• Provided, caused to be provided, or is about to provide or cause to be provided to the employer, the federal government, or the attorney general of a state information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of, any provision of Title I of the ACA;

• Testified or is about to testify in a proceeding concerning such violation;

• Assisted or participated, or is about to assist or participate, in such a proceeding; or

• Objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee reasonably believed to be in violation of any provision of Title I of the ACA or any order, rule, regulation, standard, or ban under Title I of the ACA.

The final rule states that unlawful retaliation includes, but is not limited to, intimidating, threatening, restraining, coercing, blacklisting, or disciplining, any employee with respect to the employee’s compensation, terms, conditions, or privileges of employment.

An employee who believes he or she has been retaliated against must file a complaint with the appropriate OSHA office within 180 days after an alleged violation. Upon receipt of the complaint, OSHA will notify the employer of the complaint, the allegations contained within, and the evidence supporting the allegations. Within 20 days of receipt of the filing of the complaint, the employer and employee each may submit to OSHA a written statement and any affidavits or documents to support their position. Each party may also request a meeting with OSHA to present their position.

The employee’s complaint will be dismissed if the employee fails to prove that (1) he engaged in protected activity; (2) the employer knew or suspected the employee engaged in the protected activity; (3) the employee suffered an adverse action; and (4) the circumstances were sufficient to raise the inference that the protected activity was a contributing factor in the adverse action. The burden can be met simply by showing that the adverse action took place shortly after the protected activity.

If the employee meets his or her burden, and the employer fails to respond or fails to prove by clear and convincing evidence that it would have taken the same adverse action in the absence of the employee’s protected activity, OSHA will conduct an investigation. Following the investigation and within 60 days of the filing of the complaint, the assistant secretary of labor for Occupational Safety and Health (assistant secretary) will issue written findings as to whether there is cause to believe the employee has been retaliated against. If there has been a violation, the assistant secretary also will issue a preliminary order providing relief to the employee.

Within 30 days of receipt of the findings, either party may file objections and/or seek judicial review. If no timely objection is filed, then the preliminary order will become final and not subject to judicial review. If requested, a hearing before an administrative law judge (ALJ) will be commenced expeditiously. The ALJ will make a decision on whether a violation occurred and issue an order that will become effective 14 days after the date of the decision if no appeal is made to the Administrative Review Board (ARB). The decision of the ALJ will become the final order of the secretary of labor (secretary) unless the ARB accepts the case for review within 30 days. If the ARB takes the case, the final decision of the ARB will be issued within 120 days of the conclusion of the hearing, which is deemed to be 14 days after the date of the decision by the ALJ.

Within 60 days after the issuance of a final order, any person adversely affected by the order may file a petition for review in the U.S. Court of Appeals for the circuit in which the violation allegedly occurred. Additionally, the employee may seek de novo review of the matter in the appropriate U.S. district court (1) within 90 days after receiving written findings from the assistant secretary and there has been no final decision of the secretary; or (2) if there has been no final decision of the secretary within 210 days of the filing of the complaint.

The final rule reinforces OSHA’s commitment to protecting workers who raise concerns about potential violations of the ACA or who purchase health insurance through an Exchange. This means employers must be extra cautious when taking any adverse action against an employee protected under the anti-retaliation provisions of the ACA. The consequences of failing to comply with the final rule include back pay with interest, special damages sustained as a result of the retaliation, and attorney fees.