A New Headache For Employers: Whistleblower Claims Under the Affordable Care Act
By STEPHEN H. HARRIS, MELINDA A. GORDON & MARC E. BERNSTEIN
On February 22, 2013, the United States Department of Labors Occupational Health and Safety Administration published an interim final rule, effective February 27, 2013, setting forth procedures governing whistleblower complaints under the Patient Protection and Affordable Care Act. The Act prohibits retaliation against employees (i) who report violations of Title I of the Act (which contains most of the substantive provisions that relate to employee health plans) or (ii) who receive tax credits or cost-sharing reductions in connection with participation in a health insurance exchange. Retaliating employers can be required to, among other things, reinstate terminated employees, provide back pay with interest, and pay compensatory damages, attorneys fees, and expert witness fees. The procedures, burdens of proof, and multi-level review process implemented by the Rule, in conjunction with the broad retaliation provisions in the Act, provide expansive protection for purported whistleblowers.