Six Things Healthcare Workers Need to Know About the Massachusetts Health Care Worker Whistleblower Statute: Necessary Employee Protection Amidst the COVID-19 Fall-Out
In Massachusetts, the Health Care Worker Whistleblower Statute (formally known as M.G.L. c. 149, sec. 187) makes it unlawful for employers to retaliate against their health care provider employees who report dangerous working conditions, and object to and/or refuse to partake in dangerous employment policies and/or practices that pose a public health risk to themselves or others. Retaliation against healthcare workers for “blowing the whistle” on unsafe conditions is nothing new in Massachusetts. In fact, healthcare workers are the only private employees in the Commonwealth who are protected from unlawful retaliation (demotion, termination, blackballing) for reporting safety violations. That concept is worth repeating – retaliation against healthcare workers for reporting unsafe conditions is so prevalent that the legislature created a specific statute for healthcare workers to discourage the disturbing and prevalent practice of retaliation.
The Covid-19 pandemic has taken the importance of whistleblowers to a whole new level. Widespread deaths in veteran’s homes across Massachusetts call into question not only the safety institution, but the “culture of silence” that kept the lid on things until it was too late; a culture so deeply embedded that healthcare workers would only speak to the press or the mayor’s office in Holyoke “on the condition of anonymity for fear of retaliation.” These days, it is not exaggeration to say that blowing the whistle is a matter of life and death. Many of them. Protecting whistleblowers protects the community.
This article will summarize six things every healthcare worker needs to know when they report, or are thinking of reporting, unsafe or unlawful conditions at their healthcare facility so that we can protect patients, protect the healthcare worker from retaliation, and hold wrongdoers accountable.
1.The Whistleblower Statute Applies to All Healthcare Workers, Not Just Nurses and Doctors
Under the Statute, the term “health care providers” encompasses a wide variety of employees, including but not limited to nurses, physicians, physician’s assistants, chiropractors, dentists, occupational therapists, physical therapists, optometrists, pharmacists, podiatrists, psychologists, and social workers, among others. What constitutes a “health care facility” under the Statute is also broadly construed and includes many categories of facilities, including but not limited to hospitals, clinics, nursing homes, pharmacies, drug/alcohol rehabilitation facilities, assisted living facilities, and veteran’s facilities. Anyone directly involved in the patient’s care will likely be entitled to protection under the law. This is very much by design since the legislature wants to encourage healthcare providers to report and prevent unsafe conditions.
2.Healthcare Workers Can Trigger the Protections of the Whistleblower Statute in Many Different Ways
The legal notion behind the statute is that reporting an unsafe or dangerous condition (“blowing the whistle”) is a protected activity. The range of conduct that qualifies as a protected activity is broad but the whistleblower must take some action. Simply knowing that the practice exists is not enough, you must object in some way if you want to make a claim under the statute. “Blowing the whistle” does not mean that you need to expose the unsafe or dangerous condition publicly, although that certainly qualifies. Reporting to a licensing authority, complaining to a supervisor, and in some instances even just refusing to participate in the unsafe or dangerous practice can qualify as a protected activity. But it is important to remember that blowing the whistle does not require that you actually report the facility to an authority, simply the threat of a report will suffice.
Let’s consider an example. Joe is a registered nurse working in a nursing home who realizes that the nursing home is allowing prescription medications to be handed out by a receptionist. If Joe says to his manager “you need to stop this practice or I will report it to the authorities,” he has blown the whistle and is protected under the statute even though he has not actually made a report to any authority.
3. Dangerous and Unsafe Conditions Under the Statute Are Not Limited to Issues of Malpractice or Direct Medical Care
Some dangerous conditions are obvious, like reporting that a surgeon is under the influence of drugs during a procedure or that a nurse is taking patients’ prescription drugs for personal use. Others may not be so obvious. For example, in one KJC whistleblower case, a drug counselor blew the whistle for falsification of documents, fraudulent billing, failure to provide treatment, and illicit drug use/sexual activity in a drug rehabilitation facility. In that case the dangerous conditions were not related to direct-patient care at all and the wrong-doers themselves (the administrators) were not healthcare providers.
In addition, at a time when many health care facilities are scrambling to keep up with the onslaught of COVID-19 patients and related complications – whether it be shortage of medical supplies, staffing, or capacity issues – the need for whistleblower protection for health care workers has become even more imperative as working conditions deteriorate. The key-point is that the Whistleblower statute is not a statute focused singularly on regulating medical care, it is a statute by broadly construed to protect patients, as well as employees, from harms caused by anyone at the healthcare facility, whether it is a doctor, nurse, janitor, administrator, or CEO.
4.The Covid-19 Pandemic Has Created A Breeding Ground for Unlawful/Unsafe Practices
Health care workers fighting on the frontlines are subjected on a daily basis to the horrors that the COVID-19 pandemic has to offer, and the emotional and mental havoc endured by these employees certainly takes its toll. Very recently a prominent New York City Emergency Room doctor, Dr. Lorna Breen, committed suicide in the wake of treating an insurmountable number of coronavirus patients. Many healthcare workers are fearful of spreading the disease to their loved ones and experience frustration at the longer than normal shifts, lack of sufficient protective gear, and overcrowding. Depression, anxiety, and PTSD are also not uncommon among health care workers during this time as the death toll continues to rise across the country. In an interview with the Boston Herald, Jacqueline Fitts, a psychiatric nurse at Morton Hospital in Taunton, describes the general atmosphere in the health care field amidst COVID-19: “It’s scary for I think everyone that works in this profession because there are so many unknowns and we aren’t being protected.”
Even amidst the chaos of the COVID-19 pandemic, health care employees – by law – are still entitled to a safe workplace where they are free to report dangerous working environments and conditions, along with mental health issues they or others are experiencing as a result of this unprecedented pandemic, without fear of retaliation from their employers.
Although the statute provides whistleblower protection for health care workers who report dangerous working conditions, many of these employees – both in Massachusetts and across the country – have been reluctant to come forward about potentially dangerous working conditions. In some instances, health care workers have even been instructed by their employers to refrain from making public comments about the lack of protective equipment and increasingly dire conditions within health care facilities. For some employees who have spoken out, the responses from employers have often been negative, ranging from termination to refusal to promote or hire.
Thanks to The Massachusetts Health Care Worker Whistleblower Statute, that is illegal.
5. ALL Retaliation is Illegal
The statute defines ”Retaliatory action” as “the discharge, suspension, demotion, harassment, denial of a promotion or layoff or other adverse action taken against a health care provider affecting the terms and conditions of employment.” While a firing or demotion is obvious, other forms of retaliation may be more subtle. “Other adverse action” can include many things. A supervisor may subject a whistleblower to a series of adverse actions over time that, taken as a singular discrete act, would not rise to the level of retaliation but, cumulatively over time, do qualify as retaliation. For example, getting scheduled one bad shift probably would not rise to the level of retaliation. However, getting every bad shift for weeks or months would rise to the level of retaliation. Retaliation can include threats, insults, negative performance reviews, and maltreatments of all forms.
For example, The KJC LAW FIRM obtained a landmark jury verdict where a healthcare worker was retaliated against for reporting harassment and discrimination based on her gender. In that case, First Circuit Court of Appeals declared that gender-based insults qualify as sexual harassment even when the comments were not “sexual” in nature. In many cases, the employer intentionally and knowingly makes the workplace so intolerable for the whistleblower that s/he must quit or resign. Under the law, this is known as “constructive discharge” and the penalties for the employer are the same as if they outright fired the employee.
6. You Only Have Two Years to Bring A Claim Under the Statute
Health care workers who file suit within the two- year timeframe may be entitled to reinstatement to their position, lost wages and benefits, compensation for emotional distress, and attorney’s fees. With some technical exceptions, the two-year statute starts from the date you knew or should have known your employer was retaliating against you.
If you wait too long to bring forth the claim, your right to bring a lawsuit could be lost forever.
