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Home > New Employee Protections Included in Health Care Reform

New Employee Protections Included in Health Care Reform

The recently passed health care reform bill has been described as sweeping and historic. Included in this legislation are some controversial provisions, which if introduced on their own, would have sparked much debate. These protections outlined below are intended to help keep down the cost of health care by encouraging reports of fraud and waste in this important sector of the economy. Employees of health care providers, especially those that receive Medicare and Medicaid funding, now have additional tools to help in this effort with less fear of losing their own employment as a result.

Whistle Blower Protections

One very significant provision expands the protection for employees who engage in “whistle blowing” activity. An employee who reports fraud or waste in the use of federally appropriated funds stands to share in the recovery of those funds from his or her employer if they were the original source of the information of wrongdoing to the government. Previously, the definition of an original source was quite restricted, and an employee could often not qualify if the government had information that would justify its beginning an investigation, even though that information might be inconclusive. Now, the definition of an original source will include an individual who “has knowledge that is independent of and materially adds to the publicly disclosed allegations or transactions, and who has voluntarily provided the information to the Government before filing” his or her own lawsuit.

Another notable employment law change coming from the health care reform bill addresses the Fair Labor Standards Act, which primarily deals with the minimum wage and requirements for premium pay for overtime work for certain employees. The Act is now amended to protect health care workers who report or participate in investigations of violations of the new rules governing health insurance. These new regulations relate to the denial of coverage for pre-existing conditions, or discrimination based on receipt of health insurance subsidies, among other things.

Some employees are now even required to report suspected criminal violations relating to health care. Federally funded long-term care facilities must notify their employees of this obligation, and any employee, manager or contractor who fails to report a reasonable suspicion of criminal activity to at least one law enforcement agency is subject to civil fines of up to $200,000. Retaliation against an employee who makes such a report is now illegal.

The procedures that apply to claims of unlawful retaliation under the new statute are generous to the employee, tracking those of the Consumer Product Safety Improvement Act and the Sarbanes-Oxley Act. An employee prevails upon proof, by a preponderance of evidence, that his or her protected actions were a contributing cause of the adverse action of the employer. The employer will have a defense if it can prove that it would have taken the same action anyway, but this proof must meet the tough standard of clear and convincing proof.

The following article is informational only and not intended as legal advice. Speak with a licensed attorney about your own specific situation. © Copyright 2011 MacElree Harvey, Ltd. All rights reserved.