Increased Protections for Certain Whistleblowers in Health Care

Governor Cuomo signed a bill on June 17, 2020 amending Section 741 of the New York Labor Law to increase protections for whistleblowers that file complaints against their employers, specifically in health care.  This amendment prohibits certain health care employers from penalizing employees that file formal complaints for alleged employer violations of workplace and patient safety concerns.  See Senate Bill S8397A.   Employers that fall under Section 741(b) are private and public entities that:

• Provide health care services in facilities licensed under the New York Public Health Law (e.g. hospitals, home care and health aide services, residential health care facilities, etc.);
• Provide health care services within public or private schools, both primary and secondary, as well as public or private universities and colleges; 
• Are registered with the Department of Education under the New York Education Law (e.g. school districts and facilities) or;
• Operate and provide health care services pursuant to the New York Mental Hygiene Law (e.g. psychiatric centers, addiction treatment facilities, supervised and supportive living facilities, etc.) or the New York Correction Law (e.g. correctional and detention facilities).

Under this amendment to Section 741, employees may now report “violations of improper quality of patient care or workplace safety to news and social media outlets without fear of retaliation.  See Senate Bill S8397A, section 2A.  This amendment was largely in response to the lack of personal protective equipment (“PPE) available to health care professionals during the COVID-19 outbreak, which ultimately forced hospitals to ration PPE.  While many hospitals told their medical professionals and the general public that there was adequate PPE, this was allegedly not always the case.  See “Justification” section under Senate Bill S8397A. 

Many providers protested by publicizing their dissatisfaction with working conditions on social media outlets such as Facebook.  Some providers were given warning notices by hospital administration and some were even fired for these actions due to “hospital media guidelines.   While health care professionals previously had some whistleblower protections, this new law expands these protections for many employees with regard to speaking with news outlets and posting on publicly accessible social media platforms.  See Senate Bill S8397A.

Jessica N. Haller, Law Clerk, contributed to this article. If you have any questions about this article or whistleblower protections generally, please contact David R. Ross, Esq., Senior Shareholder, via e-mail at dross@oalaw.com.