Rose Law Group Health/Employment lawyer David Weissman speaks to Affordable Care Act provision that could spur retaliation lawsuits against employers

A little-known provision in the Affordable Care Act could put employers in the middle of retaliation lawsuits if they restructure their workforce in 2014.

A provision in the ACA prohibits employers from taking negative actions against employees — such as reducing benefits and cutting hours — in retaliation for employees getting subsidized coverage on the Arizona Marketplace, also known as the health exchange.

Once the exchanges are up and running, employers will get monthly reports from the feds, detailing which employees received subsidized health insurance coverage through the exchange. (These reports were designed to have employers help the U.S. Internal Revenue Service determine who is covered by health insurance, because individuals will be fined $95 a year if they don’t have coverage.)

Here’s the trap: Now that employers will know which employees dump their employer-based insurance and go to the exchange to buy coverage, it puts them in the awkward position of getting sued — even if the employer’s workforce restructuring was not even related to the ACA.

Statement by Rose Law Group’s David Weissman, employment and health care lawyer: The anti-retaliation provisions of the Affordable Care Act (ACA) create yet another landmine for employers and a weapon for savvy plaintiff’s lawyers to use when asserting claims on behalf on an employee.  That said, there are various steps employers can take to minimize their risk of a successful claim based on these provisions of the law.  This includes creating and enforcing policies that limit the internal disclosure of information regarding which employees have received subsidies and other cost savings through the insurance exchange marketplace, updating the company’s employee handbook to expressly state that retaliation for protected activity under the ACA is prohibited, and training managers and supervisors on any such newly enacted anti-retaliation policies.





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