The Occupational Safety and Health Administration (OSHA) is requesting comments on its interim final regulations (Docket No. OSHA2011-0193) governing the employee protection (whistleblower) provision of section 1558 of the Affordable Care Act, codified at section 18C of the Fair Labor Standards Act. Section 18C provides protections to employees who may have been subject to retaliation for reporting potential violations of the law's consumer protections (e.g., the prohibition on denials of insurance due to pre-existing conditions) or affordability assistance provisions (e.g., access to health insurance premium tax credits). The interim rules establish procedures and time frames for the handling of retaliation complaints under 18C, including procedures and time frames for employee complaints to OSHA, investigations by OSHA, administrative appeals and judicial review of the Secretary of Labor's final decision. Generally, 18C(b)(1) adopts the procedures, notifications, burdens of proof, remedies, and statutes of limitation in the Consumer Product Safety Improvement Act of 2008 (CPSIA), 15 U.S.C. 2087(b). Thus, a covered employee is to file a complaint with the Secretary of Labor (Secretary) within 180 days of the alleged retaliation and the employer will have 60 days to respond. OSHA interprets the scope and protections under 18C broadly and in the fashion of a consumer protection statute. Most notably, OSHA looks to adopt a standard similar to the whistleblower provisions under Sarbanes-Oxley, whereby an employee's whistleblower activity is protected if based on a reasonable, but mistaken, belief that a violation of the relevant law has occurred.
Employers concerned about the overreaching scope of the proposed standard are able to submit comments electronically through the Federal eRulemaking Portal.