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    Wisconsin Lawyer
    March 01, 2004

    Health Care Worker Protection Statute at a glance

    Health care workers who in good faith report standard of care violations are protected from employer retaliation. The importance of Wisconsin's Health Care Worker Protection statute can only grow as our population ages and our reliance on health care workers and facilities increases.

    Daryll Neuser

    Wisconsin Lawyer
    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).


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