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H.194

Introduced by   Representatives Kiss of Burlington, Cross of Winooski, Donahue of Northfield, Donovan of Burlington, Edwards of Brattleboro, Haas of Rochester, Head of S. Burlington, Jerman of Essex, Jewett of Ripton, Larson of Burlington, Marek of Newfane, McLaughlin of Royalton, Shand of Weathersfield and Zuckerman of Burlington

Referred to Committee on

Date:

Subject:  Labor; health care; whistleblower protection; all employees

Statement of purpose:  This bill proposes to extend whistleblower protection to all employees in Vermont.

AN ACT RELATING TO WHISTLEBLOWER PROTECTION

It is hereby enacted by the General Assembly of the State of Vermont:

Sec. 1.  21 V.S.A. §§ 507, 508, and 509 are amended to read:

§ 507.  WHISTLEBLOWER PROTECTION; HEALTH CARE

             EMPLOYEES; PROHIBITIONS; HEARING; NOTICE

(a)  For the purposes of this subchapter:

(1)  “Employee” means any person individual who performs services for wages or other remuneration under the control and direction of any public or private employer.

(2)  “Employer” means an individual, partnership, association, corporation, the state or a political subdivision of the state, or the agent, contractor, or subcontractor of an employer.  For the purposes of a health care employee, an employer includes:

(A)  a A hospital as defined in subdivision 1902(1) of Title 18; or 18 V.S.A. § 1902(1).

(B)  a A nursing home as defined in subdivision 7102(7) of Title 33 33 V.S.A. § 7102(7).

(C)  A health care provider as defined in 18 V.S.A. § 1942(8). 

(3)  “Improper quality of patient care” means any practice, procedure, action, or failure to act of an employee or employer that violates any provisions of the Nurse Practice Act, codes of ethics, hospital policies, or any other established standards of care related to public or patient health or safety.

(4)  “Law” means any law, rule, or regulation duly enacted or adopted by this state, a political subdivision of this state, or the United States.

(5)  “Public body” means

(A)  the The United States Congress, any state legislature or any popularly elected local government body, or any member or employee thereof;.

(B)  any Any federal, state, or local judiciary, or any member or employee thereof, or any jury;.

(C)  any Any federal, state, or local regulatory, administrative, or public agency or authority, or instrumentality thereof;.

(D)  any Any federal, state, or local law enforcement agency, prosecutorial office, or police or peace officer; or .

(E)  any Any division, board, bureau, office, committee, or commission of any of the public bodies described in this subdivision.

(6)  “Retaliatory action” means discharge, threat, suspension, demotion, denial of promotion, discrimination, or other adverse employment action regarding the employee’s compensation, terms, conditions, location, or privileges of employment.

(7)  The “American Nurses Credentialing Center (ANCC)” means the national organization that developed the Magnet Recognition Program.  The Magnet Recognition Program recognizes excellence in nursing services and is based on quality indicators and standards of nursing practice as defined in the American Nurses Association’s Scope and Standards for Nurse Administrators.  The ANCC has the authority to designate “Magnet” status to hospitals that have demonstrated their current and ongoing commitment to excellence in nursing practice.

(8)  “Supervisor” means any person individual 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 any person or entity 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 any law or, in the case of a licensed or certified health care employee, that the employee reasonably believes constitutes improper quality of patient care.

(2)  Provides information to, or testifies before, any public body conducting an investigation, a hearing, or an inquiry that involves allegations that the employer has violated any law or, in the case of a licensed or certified health care employee, 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:

(A)  In violation of a law or, in the case of a licensed or certified health care employee, constitutes improper quality of patient care.

(B)  Fraudulent or criminal.

(C)  Incompatible with a clear mandate of public policy concerning the public health, safety, or welfare or protection of the environment.

(c)  Subdivisions (b)(1) and (3) of this section shall not apply unless an employee first reports the alleged violation of law or improper quality of patient care to the employer, supervisor, or other person individual designated by the employer to address reports by employees from employees or from employees who are licensed or certified health care employees of improper quality of patient care, and the employer has had a reasonable opportunity to address the violation.  The employer shall address the violation under its compliance plan, if one exists.  The employee shall not be required to make a report under this subsection if the employee reasonably believes that doing so would be futile because making the report would not result in appropriate action to address the violation.

(d)  Nothing in this subchapter shall be deemed to diminish the rights, privileges, or remedies of any employee under any law or under any collective bargaining agreement or employment contract.

(e)  An employer shall not require an employee to waive, as a condition of employment or settlement, the right to engage in reasonable conduct protected pursuant to subsection 507(b) of this title.

§ 508.  ENFORCEMENT

(a)  An employee aggrieved by a violation of this subdivision may do either or both of the following:

(1)  utilize Utilize any available internal process, grievance procedure, or similar process available to the employee to maintain or restore any loss of employment rights with the employer; or.

(2)  bring Bring an action in the superior court of the county in which the violation is alleged to have occurred.

(b)  The initiation or completion of an internal process, grievance procedure, or similar process under subdivision (a)(1) of this section shall not be a condition precedent to bringing an action in superior court under subdivision (a)(2) of this section.

(c)  No later than July 1, 2005, all hospitals as defined in subdivision 1902(1) of Title 18 shall revise their internal processes referred to in subdivision (a)(1) to include and be consistent with ANCC Magnet Recognition Program standards that support the improvement of quality patient care and professional nursing practice.

(d)  If the court finds that the employer has violated subsection 507(b) of this title, the court shall order, as appropriate:

(1)  reinstatement Reinstatement of the employee, including employment benefits, seniority, and same or equivalent position, shift schedule, or hours worked as the employee had before the retaliatory action;.

(2)  payment Payment of back pay, lost wages, benefits, and other remuneration;.

(3)  any Any appropriate injunctive relief;.

(4)  compensatory Compensatory damages;.

(5)  punitive Punitive damages;.

(6)  attorney Attorney fees; or .

(7)  any Any other appropriate relief.

§ 509.  NOTICE

(a)  No later than December 1, 2004, the commissioner of labor and industry shall develop and distribute to each employer a standard notice as provided in this section.  Each notice shall be in clear and understandable language and shall include:

(1)  a summary of this subchapter;

(2)  that an employee, in order to receive the protections of this subchapter, must report, pursuant to subsection 507(c) of this title, to the employer, to the supervisor, or to the person designated to receive notifications; and

(3)  a space for the name, title, and contact information of the person to whom the employee must make a report under subsection 507(c) of this title.

(b)  No later than January 1, 2005, each Each employer shall post the notice as provided by the commissioner of labor and industry in the employer’s place of business to inform the employees of their protections and obligations under this subchapter.  The employer shall post the notice in a prominent and accessible location in the workplace.  The employer shall indicate on the notice the name or title of the individual the employer has designated to receive notifications pursuant to subsection 507(c) of this title.

(c)(b)  An employer who violates this section by not posting the notice as required is liable for a civil fine of $100.00 for each day of willful violation.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us