The Occupational Safety and Health Administration (“OSHA”) announced yesterday that it has published a final rule regarding how it will handle retaliation claims brought by employees under the Affordable Care Act (“ACA”). OSHA is generally tasked with investigating whistleblower complaints brought by employees under the Occupational Safety and Health Act, as well as many other statutes, including the ACA. And its new rule adds another layer of regulation in that effort.

The ACA was signed into law in March of 2010. It amended the Fair Labor Standards Act by adding Section 18C, which protects employees from discrimination and retaliation “because the employee (or an individual acting at the request of the employee) has” (i) received a premium assistance credit or a reduction in cost-sharing under a qualified health care plan, (ii) provided information to an employer or a government agency about an action the employee reasonably believes is violation of Title I of the ACA, (iii) testified in a proceeding about such a violation, (iv) otherwise assisted or participated in a proceeding about such a violation, or (v) objected to or refused to participate in any policy, practice, or task the employee reasonable believes is in violation of Title I the ACA. In the preamble of the final rule, OSHA explained that these statutory protections addressed the potential for retaliation stemming from the “relationship between the employee’s receipt of the premium tax credit and the potential employer shared responsibility payment[,]” an employee’s report of a violation of the prohibition on pre-existing condition exclusions, and the exercise of other related protections or benefits. See also 29 C.F.R. § 1984.100(a) (outlining the purpose and scope of the final rule). This particular statutory protection does not extend to reporting Medicare or Medicaid fraud or patient abuse. See Occupational Safety and Health Admin., OSHA Fact Sheet: Filing Whistleblower Complaints under the Affordable Care Act, available here.

By statute, employees bringing a whistleblower complaint under the ACA must do so within 180 days of the allegedly adverse action. 15 U.S.C. § 2087(b). OSHA’s new rule does not alter the statutory protections or the statute of limitations but, rather, outlines the procedures for the “expeditious handling of retaliation complaints filed by employees . . . .” 29 C.F.R. § 1984.100(b). According to OSHA, these procedures are designed to be consistent with the agency’s other whistleblower investigations.

Generally, upon receipt of a claim by an employee, OSHA will notify the employer about the complaint filing, the nature of the allegations, and the substance of the evidence presented. 29 C.F.R. § 1984.104(a). Within 20 days of the employer’s receipt of such notice, the employer and employee may submit written statements with evidence to support their respective positions and/or otherwise request a meeting with OSHA to outline their positions. 29 C.F.R. § 1984.104(b). During its investigation, OSHA will generally protect the confidentiality of those individuals (other than the complaining employee) providing information on a confidential basis but will otherwise require the parties to serve copies of their submissions to each other throughout the investigation. 29 C.F.R. §§ 1984.104(c), (d).

OSHA clarifies that whistleblower complaints will be dismissed unless the employee makes “prima facie showing that a protected activity was a contributing factor in the adverse action alleged in the complaint.” 29 C.F.R. § 1984.104(e)(1) (emphasis added). This appears to be a low burden because the agency will deem the employee’s burden met where the employee “alleges the existence of facts and either direct or circumstantial evidence” to “give rise to an inference that the [employer] knew or suspected that the employee engaged in protected activity and that the protected activity was a contributing factor in the adverse action.” 29 C.F.R. § 1984.104(e)(3). Under the new rule, a close temporal proximity between the protected activity and adverse action, or even an adverse action “at the first opportunity available to” the employer after the protected activity, will be sufficient to meet the employee’s burden. Id. In some states, this stance may be at odds with existing case law on retaliation claims under other statutes. See, e.g., Arteaga v. Brink’s, Inc., 163 Cal. App. 4th 327, 354 (Cal. Ct. App. 2008) (“affirmatively” rejecting “the notion that temporal proximity standing alone can be sufficient proof of pretext” and stating that the adverse action must be “very close” to the termination even to be persuasive evidence at the prima facie stage); Hernandez v. Am. Tel. and Tel. Co., 198 S.W.3d 288, 293-94 (Tex. App.—EL Paso 2006, no pet.) (stating that an employee’s evidence of an employer’s knowledge of an employee’s filing of a workers’ compensation claim and the filing’s close temporal proximity to a termination was insufficient, on its own, to raise a fact issue to overcome an employer’s dispositive motion). Further burdening employers, OSHA states that an employer must offer “clear and convincing evidence” “that it would have taken the same adverse action in the absence of the [employee’s] protected activity.” 29 C.F.R. § 1984.104(e)(4) (emphasis added). This is likely to be a high hurdle for employers to jump when implemented, and its potential inconsistency with existing case law in terms of what constitutes sufficient evidence may lead to unpredictability for employers in handling personnel issues.

Within 60 days of the complaint filing, OSHA will issue written findings “as to whether or not there is reasonable cause to believe that the [employer] has retaliated against the complainant in violation of” Section 18C of the FLSA. 29 C.F.R. § 1984.105(a). If there is, the agency can issue preliminary orders awarding relief to the employee, including reinstatement, back pay, and restoration of benefits. 29 C.F.R. § 1984.105(b). Parties desiring review of the agency’s findings and/or preliminary orders have 30 days to file objections or a request for a hearing before an administrative law judge. 29 C.F.R. § 1984.106.