Vol. 77, No. 3, March
2004
Health Care Worker Protection Statute at
a glance
Generally, the Health Care Worker Protection statute provides
employment protection to health care facility and health care provider
employees who, in good faith, report quality of care concerns to persons
who are in a position to take corrective action.1 The scope of the statute is far broader in many
respects than this general statement suggests, and employees and
employers alike should understand several important points regarding
statutory coverage and requirements.
Protected Health Care Workers
The definitions of "health care facility" and "health care provider"
offer an initial indication as to the statute's breadth. A "health care
facility" includes hospitals, nursing homes, community-based residential
facilities, county homes, county infirmaries, county hospitals, county
medical health complexes, and other places licensed or approved by the
Wisconsin Department of Health and Family Services. The definition of
"health care provider" includes certain other organizations such as
hospices, rural medical centers, and home health agencies, but also
includes more than 20 classifications of health care professionals who
are either licensed or certified by the state of Wisconsin to provide
health care services to the public. For example, licensed nurses,
dieticians, dentists, physicians, and even certified massage therapists
are all within the definition.
Information that Qualifies as a Protected Quality of Care
Concern
The information that qualifies as a protected quality of care concern
also is broadly defined and may be separated into two general
categories.
The first category is straightforward. It is nonprivileged
information that would lead a reasonable person to believe that the
health care facility or health care provider has 1) violated a state
law, 2) violated a state rule, 3) violated a federal law, or 4) violated
a federal regulation. Therefore, employment protection is triggered only
after the employee makes a good faith determination that a state or
federal law or rule has been violated.
The second category is more complex. It is nonprivileged information
that would lead a reasonable person to believe that the quality of
health care services poses a potential risk to public health or safety
and violates a standard established by state law, state rule, federal
law, federal regulation, or any clinical or ethical standard established
by a professionally recognized accrediting or standard setting body.
Therefore, unlike the first category of information, the employee must
make a good faith determination that the quality of care poses a
potential risk to public health or safety. In addition, the employee
must make a good faith determination that the quality of care violates
an existing standard of care embodied in a law, rule, recognized
clinical standard, or recognized ethical standard.
In both cases, however, the employee must identify a specific
standard of care that was violated.2 If not
connected to a recognized standard of care, general medical
disagreements and disagreements regarding preferred care are not
protected quality of care concerns.
As stated earlier, employment protection is provided only to those
employees who report quality of care concerns in good faith. An employee
is not acting in good faith when the employee reports or provides
information that the employee knows or should know is false or
misleading. Reports that are motivated by a desire to see a health care
facility or health care provider punished, regardless of the truth of
the accusations, are not made in good faith.3
An employee may report the above information to any agency of the
state and to any professionally recognized accrediting or
standard-setting body that accredited, certified, or otherwise approved
the health care facility or health care provider. Unlike other Wisconsin
health care whistleblower statutes,4 an
employee also may report information to any coworker who is in a
supervisory capacity, any coworker in a position to take corrective
action, and any officer or director of the health care facility or
health care provider.
Protected Employee Activities
Employment protection is triggered in several circumstances. First,
as discussed above, an employee who makes a good faith report is
protected from retaliation. Second, the statute provides protection to
an employee who initiates, participates in, or testifies in an action or
proceeding in which a statutory violation is alleged. Third, an employee
who provides information to a legislator or legislative committee
relating to an alleged violation of the statute is protected. Finally,
the statute also provides employment protection to an employee whose
employer believes the employee has taken one of the above actions.
Prohibited Employer Actions
The statute prohibits a health care facility, health care provider,
and other employees of the health care facility or health care provider
from taking "disciplinary action" against an employee because the
employee engaged in protected activities. Threats of disciplinary action
also are prohibited.
Prohibited disciplinary action includes the most obvious forms of
adverse employment action such as discharge, demotion, suspension,
verbal and physical harassment, and reprimand. However, more subtle
forms of retaliation, including removal of a job duty and denial of
certain forms of education and training, also are prohibited.
Endnotes
1Wis. Stat.
§ 146.997.
2Cynthia Korn v. Divine Savior
Healthcare Inc. (LIRC, Jan. 16, 2004).
3Id.
4Wis. Stat.
§§ 46.90, 50.07(1), 16.009(5)(a).
Wisconsin Lawyer