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

 

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.
  

8 thoughts on “OSHA and the Affordable Care Act: What is that connection?”

  1. I have been Intimidated by a worker’s comp employee for Bridgestone. I’ve caught him in lies and miss using his Authority.I feel they are still out to get me.

    Reply
  2. Hi my manager at my last job cursed at me numerous times in front of other in employees i was fired the next day what should I do.

    Reply
    • Sorry Monica, but there is not much you can do, unless you can show that your boss did this on the basis of your race, age, sex or some other protected category. Of course you can always talk to an attorney.

      Reply
  3. Hello, I have a manager who is making threats and I don’t work for the company anymore. What steps should I take?

    Reply
  4. I worked at a dominos and I had to leave to work for another owner because of daily harassment I reported many times then found out district manager never reported to Human Resources so I reported to Human Resources and I was transferred and my hours cut and the harassment continued so I left the problem is my mother works there and is Mexican and the boss is very racist and says a bunch of stuff I don’t want to repeat so he screams at her Dailey and belittle her in front of staff and customers

    Reply

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