Not What The Doctor Ordered - A New Whistleblower Law for NY Healthcare Employers

Here’s the scenario – Your Ambulatory Clinic just reopened in May, and since then one of the RN’s, let’s call her Rita, has been late multiple times, and is often on her phone when she should be working. When she was called in by the Director, Rita said, “I have been late because I feel this place is unsafe. Patients are coming in without face masks, we don’t have sanitizer at the desk, and this is just not a safe work situation. I want to make a complaint.”

  • Does Rita have a claim?
  • Can Rita sue?
  • Can you still give Rita the lateness warning?
The answer to all of these questions is YES. Rita may have a claim, she can sue, and finally, yes you should still give her the lateness warning. Healthcare providers beware, this type of complaint may well become more prevalent.

In addition to ongoing challenges brought by COVID-19, New York hospitals must also deal with another new law. In what is likely a direct response to reports of workers complaining about workplace safety issues, Governor Cuomo signed into law an amendment to the New York healthcare whistleblower law, which adds a new type of “protected activity” to the list of complaints covered by the law, to include complaints about “improper quality of workplace safety.” The new law went into effect immediately.

The amendment also expands the types of entities which an employee may complain to, these now include “complaints” to a “news media outlet” or to a “social media forum.”

All health care employers should be aware of this new amendment, update their policies, and train their management on it.

Background of the NY Healthcare Whistleblower Law

As all New York employers should know, Section 741 of the New York Labor Law already contained special protections for certain health care employees.

Section 741 states that a health care employer may not retaliate against a healthcare employee because the employee either (i) discloses or threatens to disclose to a “supervisor, or to a public body”, or (ii) objects to, or refuses to participate in,” an activity, policy or practice of the employer that may constitute improper quality of patient care.” The term “improper quality of patient care,” as defined in § 741, means violations that relate to “matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient.”

The new amendment to 741 expands these whistleblower protections in two important ways:

First, it now prohibits retaliation against any employee “discloses or threatens to disclose,” or “objects to or refuses to participate in” any “improper quality of workplace safety.” This is defined as any matters that “may present an unsafe workplace environment or risk of employee safety or a significant threat to the health of a specific employee.”

Second, the new amendment does not just cover complaints to management and ‘public bodies’, but expands protection to include/ encompass disclosures to news and social media outlets. This covers complaint about both patient and employee health and safety issues.

Under the current law, any covered employee who claims a violation may bring a private civil seeking injunction and reinstatement with back pay and benefits. An employee who prevails may also recover their legal fees.

Why This Expansion?

The legislative history makes it clear that this is a reaction to the hyper-charged events in New York in March and April, at the height of the COVID-19 crisis. As hospitals struggled to supply PPE, there were scattered reports of employees going to the media to complain and then allegedly being silenced. Regardless of whether these were true, the legislature took action.

According to the New York State Assembly’s Memorandum in Support of the law, the purpose of the legislation is to “provide medical professionals with greater whistleblower protections,” so they can speak more freely about the conditions of the patients for whom they provide care.

What Should Employers Do?

Be aware, train managers, respond to all complaints, update your policies, and document everything.

What About Rita the RN?

Does she have a claim? Potentially yes, as she is a covered “employee” under Section 741.

It is possible that Rita may be abusing the law? Absolutely. It’s not uncommon for weak performers, like Rita, to exaggerate complaints in order to shield themselves from discipline for something unrelated.

Can she sue? Sure, anyone can try to sue but the real question is can she win. The answer to that question is a confident “no” if employers handle the complaint properly.

Employers should be prudent when handling this type of complaint. Divide the situation and complaint into different buckets. Delay the tardiness conversation and review her complaint first. Send her a written response. After her complaint has been handled, then you can turn to address her lateness and dereliction of duty. If necessary, you may discipline Rita.

The example with Rita could provide some lessons in how to handle these complaints and how to monitor your workforce.