By Callan Stein, William Taylor and Samantha Burdick

Law360 (May 26, 2020, 5:22 PM EDT )

Callan Stein

William Taylor

Health care professionals, hospitals and other health care facilities are critical to the nation's efforts to address the COVID-19 pandemic, and they are under incredible strain caused by challenges such as widespread shortages of personal protective equipment and other critical equipment, risks related to working with patients showing symptoms of COVID-19, and the need to redeploy personnel and resources in nontraditional ways.

At the same time, the economic downturn related to the pandemic has blocked many key revenue streams in the health care industry, leaving facilities no choice but to conduct mass layoffs, cut hours and reduce pay. Meanwhile, those same facilities must take steps to ensure that personnel who raise concerns about issues related to COVID-19 and/or who refuse to work are not violating patient privacy or interfering with patient safety.

In this environment, there is a significant likelihood that health care facilities will face whistleblower and retaliation claims under state and federal law. Indeed, there are already well-publicized reports of lawsuits and disputes arising out of health care workers raising safety concerns on behalf of themselves and patients, including:

• A group of nurses suing a hospital for allegedly terminating them in retaliation for reporting concerns about the quality of the facemasks being provided.

• A hospital suspending a group of nurses who refused to treat COVID-19 patients without N95 face masks.

• Several instances of doctors suing hospitals for allegedly retaliatory terminations because of complaints about the hospitals' lack of adequate PPE.

These circumstances put health care facilities in a bind: How do they continue to treat their patients, protect patient privacy, and ensure they have sufficient staff who are ready and willing to work, while at the same time protect themselves from the threat of whistleblower and retaliation lawsuits?

This article provides health care facilities with an overview of the federal and state whistleblower and retaliation laws that may apply in this setting, previews some of the recent COVID-19-related conduct that has already resulted in such litigation, and identifies certain risk mitigation measures (based on recent and past case law) that health care facilities can implement now and in the coming months to help prevent and, if necessary, defend against whistleblower or retaliation suits.

Health Care Whistleblower/Retaliation Laws

The health care industry is among the most highly regulated in the world. On top of that, there are myriad federal and state laws that protect alleged whistleblowers and allow individuals to sue if they believe they have been retaliated against for raising concerns about violations of laws, regulations and standards of practice.

Federal Whistleblower Statutes

While there is no federal health care whistleblower statute, the challenges posed by COVID-19 may implicate the whistleblower provision of the Occupational Health and Safety Act. The act does not provide individuals with a private right of action to bring a lawsuit, but it does allow individuals who believe they have been subject to retaliation for "protected activity" to file a complaint with the Occupational Safety and Health Administration, thereby initiating an investigation by the secretary of labor. Under the act, "protected activities" can take many shapes and forms, including whenever an individual:

• Files an occupational safety or health complaint with management;
• Institutes a proceeding under or related to the act;
• Exercises any right afforded by the act;
• Refuses to perform a dangerous assigned task under certain circumstances.

Since March, employees have brought more than 300 OSHA complaints related to COVID-19 concerns. If an investigation finds that a health care facility has violated the act, the facility could face a wide array of sanctions, including forced reinstatement of the individual, payment of back pay (with interest), emotional distress and/or punitive damages, and other nonmonetary relief as deemed appropriate.

State Whistleblower Laws

The lion's share of whistleblower protections for health care workers are the product of state law. These state laws run the gamut from general whistleblower statutes (applying across all industries), to health care industry-specific whistleblower statutes, to common law principles. The specific elements of these laws vary from state to state, but the overarching principles and structure have many common features.

State General Whistleblower Statutes

Many states have a general whistleblower statute that protects from retaliation any individual who discloses a safety violation.[1] The typical elements of a claim brought under a state general whistleblower require the alleged whistleblower to establish that he or she:

• Had a good faith belief that a particular practice violated a public health or safety law, rule or regulation;[2]

• Reported, threatened to report or refused to participate in the practice;

• Was subject to adverse action by his or her employer as retaliation for the report, threatened report or refusal.

State Whistleblower/Retaliation Common Law

In most states, the common law also recognizes claims for retaliation brought by whistleblowers if adverse action is taken against them "in violation of public policy." Although these common law principles and courts' interpretations of them vary across the states, the typical common law whistleblower/retaliation claim requires the following elements:

• There was a clear public policy (usually based on a statute, regulation, professional ethics code or the common law);

• The facility or business dismissed the individual under circumstances that jeopardized public policy;

• The dismissal was motivated by conduct related to the public policy;

• The facility or business lacked an overriding and legitimate business justification for the action taken.

State Health Care Whistleblower Statutes

The final, and in many cases most relevant, source of state whistleblower/retaliation protection is found in whistleblower retaliation statutes that are specific to the health care industry and health care professionals. These statutes are designed to enhance patient care and safety by encouraging health care providers (doctors, nurses, PAs, etc.) to report health and safety violations.

These states have a health care-specific whistleblower statute: Arizona, California, Illinois, Kansas, Louisiana; Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Texas, Vermont, Virginia, Washington, Wisconsin and Wyoming.[3]

While there are some variations in application and eligibility across states, most health care whistleblower statutes require an individual who is covered by the statute and is alleging retaliation to establish that he or she:

• Raised an objection or concern about, or refused to participate in, an activity, policy or practice of the health care facility that poses a risk to public health;

• Reported that objection or concern to a manager, supervisor or other oversight body (depending on the statute);

• Had a reasonable belief that the activity complained about was a violation of a law, rule, regulation or professional standard of practice.

• Suffered retaliation as a result of raising the objection or concern.

In the context of COVID-19, these health care-specific whistleblower statutes may present the most significant challenges to health care facilities, as health care workers attempt to rely on the perceived expanded scope of protected conduct. Unlike the other sources of whistleblower law discussed above, many of these health care whistleblower statutes protect complaints and objections related to violations of "professional standards of practice," and do not necessarily require a whistleblower to raise a violation of the law.

Thus, health care workers who raise objections or concerns about noncompliance with state orders regarding COVID-19 or state/federal agency guidance (e.g., from the Centers for Disease Control and Prevention) — none of which constitutes a law or regulation — may try to seek protection under one of these statutes. Although it remains unclear how state courts across the country will address these issues, there have been some indications that whistleblower protections will be found in these circumstances.

Risk Mitigation Strategies for Health Care Facilities

Whistleblower and retaliation cases typically turn on facts concerning a facility's knowledge of the complaint/objection at issue, its internal response to the complaint, the strength of the alleged whistleblower's belief that the practice was in violation of the law/regulation/standard of practice, the temporal relationship between the complaint and the allegedly retaliatory action, and the extent to which the facility can establish a lawful, nonretaliatory basis for its actions.

In the context of the COVID-19 pandemic, health care facilities should consider the risk mitigation strategies described below. The goal of each strategy is to help facilities avoid whistleblower litigation altogether. But if that is not possible (and in some case litigation will, unfortunately, be inevitable), the strategies will also help facilities put themselves in the best possible position to defend against these claims and prevail in the litigation at the earliest possible stage.

Encourage Internal Reporting

Health care facilities should encourage all personnel, but particularly their providers, to raise any and all concerns internally, through specified reporting channels (e.g., an anonymous hotline). By promoting internal options for voicing concerns, health care facilities may be able to better contain issues that arise, and more efficiently investigate and address them. Without a robust internal reporting system, health care facilities may not learn of a concern until it is reported externally (e.g., through media or on social media), thereby intensifying publicity and scrutiny that may eliminate any hope of investigating and remedying the issue privately.

Evidence of strong internal reporting has also buoyed more than one health care facility to victory in whistleblower litigation. For example, in the 2017 California appellate case Melamed v. Cedars-Sinai Medical Center, the court affirmed a judgment in favor of the hospital at least in part because the hospital had multiple channels for reporting safety and quality concerns but the plaintiff failed to avail himself of these channels. Although the court noted that whistleblowing does not require any formal procedure, the plaintiff at least had to put the employer on notice of his concerns and he failed to do so.

Carefully Consider the Scope of External Communications Policies

It is common (and important) for health care facilities to have a policy that restricts contact by providers and staff with the media or other external channels, especially with respect to protecting patient confidentiality. However, whistleblowers may use the existence and enforcement of such a policy to support claims of unlawful retaliation if the whistleblower breaks the policy to report a violation of a law, rule or standard of practice.

For example, in Hitesman v. Bridgeway Inc., a 2014 whistleblower case out of New Jersey, the whistleblower contacted a local television station to report his health care facility's failure to follow CDC recommendations for hand-washing and the use of masks and gloves. The plaintiff further alleged that the facility cited this contact with the media as the reason for his termination. Due in part to these facts, the facility was unable to secure dismissal of the suit at either the motion to dismiss or summary judgment stage, and had to try the case before a jury that ultimately rendered a verdict for the plaintiff (though that verdict was ultimately overturned by the court).

Given the intense and ongoing media scrutiny, the COVID-19 pandemic creates more opportunities for individuals to speak with the media and, therefore, enhances the risk of external reporting policies playing a role in whistleblower lawsuits. Health care facilities should reexamine their media policies and ensure they are carefully and narrowly crafted to minimize their relevance in whistleblower lawsuits. Health care facilities should consider narrowing the scope of these policies to more clearly focus on patient confidentiality, and more closely examine any efforts to enforce the policy to avoid situations where an individual is punished for a violation that may also qualify as protected whistleblowing.

Consider Whistleblower Activity Before Taking Adverse Action

Health care facilities should endeavor to consider the potential whistleblower implications before executing on any proposed adverse action against an individual who could interpret it to be retaliation. This means health care facilities should train their staff to have a complete understanding of what may constitute "retaliation" under the various laws. Retaliation encompasses far more than simply terminating someone. It can also include discipline, harassment, suspensions, demotions, removal of responsibilities, and other steps leading up to termination.

Notably, in several cases, plaintiffs have pointed to a facility's initiation of peer review proceedings as retaliation for whistleblowing. In Romero v. County of Santa Clara, for example, the U.S. District Court for the Northern District of California in 2014 denied a motion to dismiss a whistleblower suit because the whistleblower plaintiff sufficiently alleged a claim of retaliation based on a facility's initiation of peer review proceedings when similar allegations against other individuals did not result in peer review proceedings.

Whenever a potential adverse action is identified, health care facilities should evaluate whether the targets of that action have raised any objections or concerns that may confer on them whistleblower protection. To do so, health care facilities should keep records of who has raised concerns and when they have done so. Monitoring reporting activity in this manner can help prevent a facility from inadvertently taking action against an individual or group of individuals who have a high likelihood of qualifying as whistleblowers.

Document, Document, Document … And Then Document Some More

In most whistleblower/retaliation cases, the best defense is strong, contemporaneous evidence that the health care facility had a legitimate reason for its action that was entirely independent (substantively and temporally) from the alleged whistleblowing activity. The best evidence will almost always be documentation of performance or competence issues that predate the alleged whistleblowing. Because it is impossible for a health care facility to know who will become a whistleblower (or when), facilities should require strict documentation of all performance and competence issues for all individuals (but especially providers).

For example, in Buytendorp v. Extendicare Health Services Inc., a hospital won summary judgment in the U.S. District Court for the District of Minnesota in 2005 on a whistleblower claim because the hospital demonstrated a legitimate reason for the adverse action by pointing to written warnings about infractions committed by the plaintiff and the institution of a performance improvement plan before the alleged whistleblowing.

Similarly, in Strozyk v. Phoenixville Hospital LLC, the U.S. District Court for the Eastern District of Pennsylvania in 2019 granted summary judgment in favor of a hospital and dismissed a whistleblower claim because the hospital conducted and documented a detailed internal investigation — including taking written witness statements — outlining the plaintiff's infractions.

Additional examples of helpful evidence health care facilities should endeavor to document before alleged whistleblowing include attendance sheets showing absences/tardiness, patient complaints, rules or policy violations, complaints by colleagues, or even financial records that support budgetary constraints that result in layoffs or pay reductions.

Conclusion

For as long as the pandemic persists, the extreme challenges facing health care professionals and health care facilities are unlikely to subside, nor will the risks of lawsuits and disputes alleging whistleblower and retaliation claims. Health care facilities should act proactively to adopt the strategies described above and seek appropriate legal advice before litigation is filed.

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Callan Stein and William Taylor are partners, and Samantha Burdick is an associate, at Pepper Hamilton LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] These states include California (Cal Lab. Code § 1102.5, Cal Lab. Code 6310); Connecticut (Conn. Gen. Stat. Ann. § 31-379); Hawaii (Haw. Rev. Stat § 378-62, Haw. Rev. Stat. § 396-8(e)); Kansas (Kan. Stat. Ann. § 75-2973); Maryland (Md. Code Ann., Labor & Empl. § 5-604); Montana (Mont. Code Ann § 39-2-901, Mont. Code Ann § 50-71-123); New Jersey (N.J.S.A § 34:19-1 to § 34:19-8); New York (N.Y. Lab. Law § 740); Ohio (Ohio Rev. Code § 4113.52); Oregon (Or. Rev. Stat. § 654.062); Virginia (Va. Code §§ 40.1-51.2:1); and Washington (Wash. Rev. Code § 49.17.160).

[2] Under most statutes, it is sufficient that the individual believed the practice was a violation. However, some statutes (e.g., New York) require an actual violation to have occurred.

[3] Ariz. Rev. Stat. § 23-425(A); Cal. Health & Safety Code § 1278.5, 1432; 210 Ill. Ann. Stat. Ch. 210, § 86/35; Kan. Stat. Ann. § 65-4928; La. Rev. Stat. § 40:2009.17; Md. Code Ann., Health Occ. §§ 1-501, 2-505; Mass. Gen. Laws. ch. 149 § 187(b); Mich. Comp. Laws § 333.20180; Minn. Stat. § 181.932(4); Nev. Rev. Stat. Ann. § 449.205; N.J. Stat. Ann. § 34:19-3; N.Y. Lab. Law § 741; Ohio Rev. Code § 4723.33 (nurses only); Or. Rev. Stat. § 441.057; 40 Pa. Consol. Stat. §§ 1303.307, 1303.308; Tex. Health & Safety Code Ann. § 161.134(a); Va. Code Ann. § 32.1-138.4; 21 V.S.A. § 507; Wash. Rev. Code § 43.70.075; Wis. Stat. § 146.997(3); Wyo. Stat. § 35-2-910(b).

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