The Department of Labor recently published final rule 2016-24559, solidifying the previously speculative Affordable Care Act (ACA) whistleblower-style employee protections. The announcement can be found at the Department of Labor’s website. The final rule is intended to discourage employer retaliation against employees who interact with the ACA in a way that calls into question employer mandate compliance.

The Occupational Safety and Health Administration (OSHA), which enforces similar protections under many other federal laws and regulations, will also be managing enforcement of the DOL final rule. Final rule 2016-24559 provides a remedy to an employee, former employee, or job applicant where it is demonstrated that he or she engaged in a protected activity (e.g., filing a complaint about employer’s ACA noncompliance, applying for subsidized exchange coverage, or inquiring into employer coverage for an exchange application) and suffered retaliation from the employer. According to the language of the rule, should the employee, former employee, or applicant suffer an adverse employment action suggesting that the employee’s protected activity was a “contributing factor,” the employer bears burden of proof to demonstrate that any employment action taken on these employees was not retaliatory, was unrelated, and was otherwise justified.

The rule states that the protections only apply where the employer “knows or suspects” that the protected action was taken, which will generally come from the employer’s receipt of an exchange notice. These notices give employers a chance to refute the claim that the employer failed to offer sponsored coverage meeting the ACA’s minimum essential coverage, minimum value, and affordability requirements. Exchange notices have already been sent by many federal and state exchanges.