THE WHISTLEBLOWER PROTECTION ACT
H.128
Introduced by Representatives Donahue of Northfield,
Koch of Barre Town, Tracy of Burlington, Bohi of Hartford, Connell
of Warren, Grad of Moretown, Kiss of Burlington, Martin of Springfield,
McAllister of Highgate and Zuckerman of Burlington
Sec.
24. 18 V.S.A. § 9420 is added to
read:
§ 9420.
WHISTLEBLOWER PROTECTION FOR HEALTH CARE
EMPLOYEES
(a) As used in this section:
(1) “Agent” means
any individual, partnership, association, corporation,
or group of persons
acting on behalf
of an employer.
(2) “Employee” means any person who performs
services for wages or other remuneration under the control
and direction of any public or private
employer.
(3) “Employer” means any person, partnership, association, corporation,
facility, institution, or the state or any political subdivision of the state
which provides health care-related services as a health care facility, a
health care provider, or a health insurer.
(4) “Improper quality of patient care” means any practice, procedure,
action, or failure to act of an employer which may present a danger to public
health or safety or to the health of a specific patient.
(5) “Public body” means:
(A) any federal, state, or local court;
(B) any federal, state, or local regulatory or administrative agency or department;
(C) any federal, state, or local law enforcement agency, prosecutorial office,
police officer, or enforcement officer;
(D) the United States Congress, any state legislature, or any elected local
governmental body;
(E) any federal, state, or local department of an executive branch of the
government; or
(F) any division, board, bureau, office, committee, or commission of any
of the public bodies described in subdivisions (A) through (D) of this subdivision
(5).
(6) “Retaliatory action” means discharge, suspension, demotion,
denial of promotion, penalization, discrimination, or other adverse employment
action.
(7) “Supervisor” means any person who has the authority to direct
and control the work performance of an employee.
(b) No employer shall take retaliatory action against any
employee because the employee does any of the following:
(1) Discloses or threatens to disclose to a supervisor
or public body any activity, policy, practice, procedure,
action, or failure to act of the employer or agent of the
employer that the employee reasonably believes is a violation
of a law, rule, or regulation adopted pursuant to law, or
that the employee reasonably believes constitutes improper
quality of patient care.
(2) Provides information to, or testifies before, any public body conducting
an investigation, hearing, or inquiry that involves allegations that the
employer has violated any law, rule, or regulation or has engaged in behavior
constituting improper quality of patient care.
(3) Objects to or refuses to participate in any activity, policy, or practice
of the employer or agent that the employee reasonably believes is in violation
of a law, rule, or regulation adopted pursuant to law or constitutes improper
quality of patient care.
(c) Subsection (b) of this section shall not apply unless
the employee first brought the alleged violation to the attention
of the employer or supervisor and the employer had a reasonable
opportunity to correct the violation, unless the employee had
a good faith specific belief that reporting the violation would
not result in prompt correction of the violation or where there
is an imminent threat to public health, safety, welfare, protection
of the environment, or to the health of a specific patient.
(d)(1)
Upon a violation of any of the provisions of this section,
an aggrieved employee or former employee
may commence
a civil action in superior court. The court shall award to
a prevailing plaintiff reasonable costs and attorney’s
fees incurred in maintaining the action. In addition to any
legal or equitable relief provided by law, the court may also
order:
(A) An injunction to restrain continued violation of this
section;
(B) The reinstatement of the employee to the same position held before the
retaliatory action, or to an equivalent position;
(C) The reinstatement of full fringe benefits and seniority rights;
(D) The compensation for lost wages, benefits, and other remuneration;
(E) Punitive damages; and
(F) An assessment of a civil fine of not more than $1,000.00 for the first
violation of this section and not more than $5,000.00 for each subsequent
violation, which shall be paid to the state treasurer for deposit in the
general fund.
(2)
The court may also order that reasonable attorney’s
fees and court costs be awarded to an employer if the court
determines that an action brought by an employee under this
section was without basis in law or in fact. However, an
employee shall not be assessed attorney’s fees under
this section if, after exercising reasonable and diligent
efforts after filing a suit, the employee files a voluntary
dismissal concerning the employer within a reasonable time
after determining that the employer would not be found to
be liable for damages.
(e)
An employer shall conspicuously display notices of its employees’ protections
and obligations under this section. Each notice posted pursuant
to this section
shall include the
name of the person or persons the employer has designated to
receive written notifications.
(f) Nothing in this section shall be deemed to diminish the
rights, privileges, or remedies of any employee under any federal
or state law or regulation or under any collective bargaining
agreement or employment contract; except that the institution
of an action in accordance with this section shall be deemed
a waiver of the rights and remedies available under any other
contract, collective bargaining agreement, state law, rule,
or regulation or under the common law.
Sec. 25. REPORT ON HEALTH CARE SYSTEM REGULATORY COORDINATION
AND ACCOUNTABILITY
The commissioner of health, the commissioner of banking,
insurance, securities, and health care administration, and
the commissioner of prevention, assistance, transition, and
health access shall report jointly to the general assembly
on or before December 15, 2003 with a summary of the public
purposes of the respective regulatory agencies, a description
of areas where the agencies have common objectives and responsibilities,
and recommendations for establishing stronger linkages and
more effective public accountability for their activities.
S154
Introduced by Senator Lyons of Chittenden County
AN
ACT RELATING TO PROHIBITION OF RETALIATORY ACTION AGAINST
WHISTLEBLOWERS
It is hereby enacted by the General Assembly of the State
of Vermont:
Sec.
1. 21 V.S.A. § 507 is added to read:
§ 507.
WHISTLEBLOWER PROTECTION; PROHIBITIONS; HEARING;
NOTICE
(a)
No employer shall discharge, threaten, or otherwise discriminate
against any employee regarding
any employee’s compensation,
terms, conditions, location, or privileges of employment based
on any of the following:
(1)
The employee, in good faith, reports, directly or indirectly,
verbally or in writing, what the
employee has reasonable
cause to believe is a violation of any law. For the purposes
of this section, “law” means any law or rule
adopted by this state, a political subdivision of this state,
or the United States.
(2) The employee, in good faith, participates, verbally or
in writing, in an investigation, hearing, or inquiry conducted
by any governmental entity,
including a court action that involves allegations that the employer has
violated any law, or in a case that the employee reasonably believes constitutes
improper quality of patient care or jeopardizes the patient’s care
and treatment.
(3) The employee refuses to execute a directive that in fact violates any
law.
(4) An employee who performs health care services for an employer that provides
health care, in addition to the protections provided in subdivisions (1),
(2), and (3) of this subsection, in good faith:
(A) Reports directly or indirectly, verbally or in writing, what the employee
has reasonable cause to believe is an action or policy that the health care
employee reasonably believes constitutes improper quality of patient care
or jeopardizes the health and safety of a patient.
(B) Participates, verbally or in writing, in an investigation, hearing, or
inquiry conducted by any governmental entity, including a court action or
licensing entity, that involves allegations that the employer failed to provide
reasonable quality of patient care or jeopardized the health and safety of
a patient.
(C) Refuses to execute a directive or participate in any activity, policy,
or practice that the employee reasonably believes clearly would jeopardize
the health and safety of a patient, the public health, or the environment.
(b) Subdivision (a)(1) or (4)(A) of this section shall not
apply unless the employee first brought the alleged violation
to the attention of the employer or a person having supervisory
authority for the employer and the employer had a reasonable
opportunity to correct the violation, unless the employee had
a good faith, specific belief that reporting the violation
to the employer would not result in prompt correction of the
violation.
(c) Any employee who alleges a violation of rights under
subsection (a) or (b) of this section may obtain a hearing
with the commissioner, provided the employee has made a reasonable
effort to maintain or restore any loss of the employment rights
with the employer or through a grievance procedure or similar
process available to the employee. If the commissioner finds
that the employer has violated subsection (a) or (b) of this
section, the commissioner shall order appropriate relief, including
reinstatement of employment, employment benefits and seniority,
payment of back pay, appropriate injunctive relief, or any
combination of these remedies.
(d) Every employer shall post notices informing the employees
about the requirements of this section in accordance with rules
adopted by the department.
(e) This section shall not be construed to diminish or impair
the rights of any person under any collective bargaining agreement
or common law.
