Healthcare Whistleblowers -- Affordable Care Act

The Patient Protection and Affordable Care Act (colloquially known as Obamacare) offers reduced cost healthcare to Americans through the Healthcare Market. When the Affordable Care Act (ACA) was passed Congress created protections for whistleblowers under the act. Employees are protected from retaliation when they take advantage of the reduced cost healthcare. Employees may also be protected when they report their employers for violating the Act. For more information regarding who is covered and when employees are protected, read below.

1. Who is covered?

Employees are protected from retaliation when they engage in protected activity. Protected activity can include taking advantage of healthcare options under the ACA, or reporting violations of the ACA by your employer. This means that it does not matter where you work. If you have engaged in protected activity and have been retaliated against by your employer, you are covered.

2. What are the elements of an ACA whistleblower retaliation case?

A whistleblower retaliation case under the ACA requires that:

  • The employee has participated in protected activity
  • The employer engaged in a retaliatory action against the employee
  • The retaliatory action was actually caused by the employees participation in protected activity

3. What is protected activity?

Protected activity can come in many forms. OSHA and the courts interpret protected activity broadly. Under the ACA protected activity can be:

  • Receiving an IRS credit under the ACA
  • Reporting a violation of the Act to their employer, the Federal Government, or to the state Attorney General
  • Participating in or testifying at an investigation of the employer regarding a violation of the ACA
  • Refusing to participate in an activity that the employee reasonably believes violates the ACA

The protection will begin when the employer knows about the participation of the employee in a protected activity. This is because it is the retaliatory action must be the result of the employee engaging in one of the above activities. An employer can’t retaliate for an action they don’t know about.

4. Can an employee go too far?

Yes. If and employee gets into a physical altercation over whether or not an employer’s actions are legal, the conduct is not protected. Additionally, other inappropriate behavior such as profanity or lack of respect can remove an employee from protection. It is important to remember that the retaliatory action must be caued by the employee’s protected activity. An employee may still be discharged for other reasons.

5. What is considered retaliatory action?

Retaliatory action is defined broadly. It is not limited to firing. Instead the Act says that an employer may not discharge or discriminate with respect to the employee’s terms, compensation, conditions or privileges of employment. This includes things like pay cuts but it can also go further. For instance, a transfer or reassignment may also be retaliatory action.

6. How do I report a violation?

Violations of the act may be reported to the Occupational Safety and Health Board. The complaint must be filed within 180 days of the retaliatory action. To file a complaint electronically, visit the OSHA whistleblower sight or call 1-800-321-OSHA.

7. Do I need a lawyer?

A lawyer can help you understand the complex issues involved in a whistleblower case. It can be helpful to have a lawyer aid you in assembling evidence and processing your claim. You can learn more about finding a lawyer at our Protect Your Rights page or search for a lawyer in your area.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.