The federal government just added another box employers must check before terminating or taking a disciplinary action against an employee.
Currently, if an employer (including a manager or supervisor) wants to terminate or discipline an employee, a series of questions must be asked beforehand, including:fol
- Does the action look discriminatory for any reason?
- Is the person on leave (or has he or she requested leave recently)?
- Is the reason for this decision in any way related to a disability?
- Has the employee complained about harassment?
- Has the employee complained about discrimination?
The list goes on and on. And now, employers have another question to add to it:
- Has the employee complained about a health or benefit plan?
The reason this needs to be added to the list is the Occupational Safety and Health Administration (OSHA) just issued its final rule outlining the anti-retaliation and whistleblower guidelines under the ACA.
What does OSHA have to do with the ACA? It’s the agency responsible for enforcing the whistleblower provisions of several federal laws.
This most reason final rule protects employees from retaliation for things like: receiving financial assistance from an exchange (i.e. “Marketplace”) to purchase health insurance and raising concerns regarding conduct they believe violates the consumer protections and health insurance reforms of the ACA.
If employees feel they’ve been retaliated against in violation of the ACA, they can file a whistleblower complaint directly with OSHA.
So now the big question is: What types of employer actions constitute retaliation?
Answer: A lot. According to OSHA, retaliation can include:
- firing or laying off an employee
- reducing pay or hours of an employee
- blacklisting a worker
- demoting an employee
- denying an employee overtime or a promotion
- disciplining a worker
- denying benefits
- failing to hire or rehire somebody
- intimidating a worker, and
- making threats to an employee.
The final rule also listed the time limit employees have for filing whistleblower complaints, as well as the specific steps employees must take to make written and electronic complaints.
An employee (or the representative of an employee) who believes he or she has been retaliated against has to file the complaint with OSHA within 180 days after the alleged retaliation.
The rule is in effect now.
New injury rule
OSHA also has a new workplace injury and illness tracking rule, which takes effect Dec. 1, 2016.
Under the rule, employers are required to tell workers about their right to report work-related injuries and illnesses without fear of retaliation. Employers can meet this requirement by posting the current version of the OSHA poster or by providing a written or e-mail notice to each employee.
Companies must also implement procedures for reporting that are reasonable and don’t deter workers from reporting injuries and illnesses, according to the agency.
OSHA is concerned that some post-injury drug testing programs might discourage workers from reporting when they’re hurt on the job. The agency feels the same way about safety incentive programs that reward employees for going a period of time without any OSHA-recordable injuries.
OSHA recently released new guidance on the anti-retaliation requirements.