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Workplace Rights

American Journal of Nursing - July, 2001 - Volume 101, Issue 7

Blowing the Whistle
Nurses’ rights and responsibilities when employers’ conduct is unethical.

By Bich Quyen-Nguyen

Q. I’ve been asked by my facility administrators to add information to documents that wasn’t originally there. What is my responsibility to report these incidents?

A. When you witness activities that may be unethical or illegal, you’re often in a difficult situation. Questions may come up: Do I report these incidents? What if I’m terminated as a result? And what is my legal recourse?

Unethical practices may be evaluated in light of the Code for Nurses with Interpretative Statements, which establishes expectations and requirements in ethical matters, including illegal and incompetent practices. Most states’ nurse practice acts have incorporated all or part of the code into their statutes and have some requirement for the reporting of illegal and incompetent practices. Moreover, nurse practice acts also provide for evaluating practices that may be illegal. Other state and federal laws governing health care practice may also be applicable, including Medicare standards for nursing homes and other facilities, laws regarding medical records and communicable diseases, antidiscrimination laws, guidelines of the Centers for Disease Control and Prevention (CDC), and regulations of the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).

If you blow the whistle (report unethical or illegal activities), you may be subjected to retaliation. Generally, statutes governing whistleblowing protection combine state and federal policies and also depend on industry type, nature of the work, and whether the incident occurs in the private or public sector. Private sector employees in many states are protected from retaliation, and while the specific kind of prohibited action varies under each law, most of the statutes protect the employees from being discharged. Under these statutes, whistleblowers who have been discharged may be reinstated, receive back pay, have lost benefits and seniority restored, and recover attorneys’ fees and court costs. However, in order to be protected you may need a reasonable basis for your disclosure.

If you work for the government, an environmental or public safety industry, or a government contractor, you may have more comprehensive protection under state and federal laws. For instance, under the Civil Service Reform Act of 1978, federal employees are protected when disclosing a violation of law, rule, or regulation; gross mismanagement; gross waste of funds; abuse of authority; or a substantial and specific danger to public health or safety. Specific federal environmental, transportation, and health and safety statutes, such as the Federal Water Pollution Control Act, the Clean Air Act, and the Occupational Safety and Health Act, also prohibit retaliation against employees who participate in any proceeding under these laws.

Further, the False Claim Act of 1863, amended in 1986, allows whistleblowers to act on behalf of the government to bring action against employers who submit false or fraudulent claims for payment. The fraudulent claims may involve Medicare, Medicaid, or other government-funded health care programs. If you are successful, you may also share in the government’s recovery and would be entitled to a portion of any damages ultimately awarded.

The ANA and its constituent member associations have been working to secure whistleblower protections in the health care industry at both the state and federal levels. Currently, there are more than 50 bills being introduced on the state legislative level that cover health providers but are not specific to them. In Hawaii, Illinois, Missouri, New Hampshire, New York, Oregon, Rhode Island, and West Virginia, there are approximately 10 state bills being introduced that are specific to health care providers. At the federal level, the ANA has advocated whistleblower protection in the Patients’ Bill of Rights. The ANA will continue lobbying members of Congress to pass a Patients’ Bill of Rights that contains patient advocacy protections.

For information on your state’s laws regarding whistleblower protections, contact your state nurses association or your state board of nursing. For information on federal legislation, go to www.nursingworld.org.