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What is the Employee Protection Provision?

Effective Feb. 27, 2013, the interim rule "Procedures for the Handling of Retaliation Complaints" (often referred to as the whistleblower protections), was released with the goal to protect employees who act as "watchdogs" for employer compliance issues.


This means, the government is now empowering employees to help ensure employer compliance of the new ACA regulations through the establishment of a whistleblower program.


The provision protects employees (or an individual acting on behalf of the employee) against revenge by their employer as it relates to employee compensation, terms, conditions, or privileges of employment for planning to engage in, or engaging in certain protected activities.


Those protected activities include:

  • Receipt of, or planning to receive, a premium tax credit or cost-sharing reduction
  • Providing information about an ACA violation
  • Testifying in a proceeding about an ACA violation
  • Participated in, or will assist in, any violation proceedings


This protection extends to current employees, former employees, and those who are applying to the company.


What is the process?


Complaints may be made by visiting, calling or writing the local Occupational Safety and Health Administration (OSHA). All complaints must be filed within 180 days after an alleged violation.


Next, the Secretary of Labor must provide written notice to the person or persons named in the complaint. Within 60 days of receiving the complaint, the person(s) named in the complaint must be given an opportunity to respond and meet with the investigator.


Upon review and investigation, OSHA's findings become the final order of the Secretary of Labor, unless the findings are appealed within 30 days. If evidence supports an employee's complaint of retaliation and settlement cannot be reached, OSHA will require the appropriate actions to make the employee whole, such as reinstating the employee, pay back wages, restore benefits, etc. Any verified report of an employer attempting retaliation or discharge will result in action favoring the employee.


While the Employee Protection Provision was enacted on Feb. 27, 2013, the final regulations have not been released.


Wellmark is here to inform, lead, assist and support you through all the ACA changes. For more information, call your Wellmark representative, agent or broker about Wellmark coverage options that best meet the ongoing needs of you and your employees. Continue to monitor for updates.


Wellmark is not providing any legal advice with regard to compliance with the requirements of the Affordable Care Act (ACA) or the Mental Health Parity Addiction Equity Act (MHPAEA). Regulations and guidance on specific provisions of the ACA and MHPAEA have been and will continue to be provided by the U.S. Department of Health and Human Services (HHS) and/or other agencies. The information provided reflects Wellmark's understanding of the most current information and is subject to change without further notice. Please note that plan benefits, rates, renewal rate adjustments, and rating impact calculations are subject to change and may be revised during a plan's rating period based on guidance and regulations issued by HHS or other agencies. Wellmark makes no representation as to the impact of plan changes on a plan's grandfathered status or interpretation or implementation of any other provisions of ACA. Any questions about Wellmark's approach to the ACA of MHPAEA may be referred to your Wellmark account representative. Wellmark will not determine whether coverage is discriminatory or otherwise in violation of Internal Revenue Code Section 105(h). Wellmark also will not provide any testing for compliance with Internal Revenue Code Section 105(h). Wellmark will not be held liable for any penalties or other losses resulting from any employer offering coverage in violation of section 105(h). Wellmark will not determine whether any change in an Employer Administered Funding Arrangement affects a health plan's grandfathered health plan status under ACA or otherwise complies with ACA.  Wellmark will not be held liable for any penalties or other losses resulting from any Employer Administered Funding Arrangement.  For purposes of this paragraph, an "Employer Administered Funding Arrangement" is an arrangement administered by an employer in which the employer contributes toward the member's share of benefit costs (such as the member's deductible, coinsurance, or copayments) in the absence of which the member would be financially responsible.  An Employer Administered Funding Arrangement does not include the employer's contribution to health insurance premiums or rates.


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