FEDweek

Report Explains Whistleblower Protection Bill

Following is the portion of a congressional report on a bill now signed into law that is designed to strengthen whistleblower protections for federal employees, including requiring discipline of those who retaliate against them.

S. 585 is a culmination of the work this Committee has done to examine the gaps and weaknesses in current whistleblower protection laws. The bill addresses a wide array of the most pressing problems at the VA and across the Federal Government relating to retaliation against whistleblowers, and directs the VA to put in place plans to limit its employees’ unauthorized access to medical records.

Sec. 102. Stays; probationary employees Subsections (a) and (b) ensure that if MSPB grants a stay to an employee under Title 5, Section 1214 or 1221, the employee can request from their employing agency a transfer, and that request shall receive priority. Subsection (c) requires GAO to study federal agency retaliation against probationary period employees.

Sec. 103. Prohibited personnel practices This section makes accessing an employees’s medical record in retaliation of an employee engaging in a protected activity a prohibited personnel practice.

Sec. 104. Discipline of supervisors based on retaliation against whistleblowers This section requires the head of each agency to propose prescribed adverse actions against supervisory employees who are determined to have committed a prohibited personnel action against a whistleblower or accessed a medical record in retaliation for the employee engaging in a protected activity as described in title 5, Section 2302(b)(8), (9), and the new (14). The adverse actions that shall be proposed are: for the first offense, not less than a 3-day suspension plus any additional supplemental discipline the head of the agency (or his designee) deems appropriate; and for a second offense, removal. A determination of the commitment of a prohibited personnel action must be made by the head of the agency, an administrative judge, the MSPB, the OSC, an adjudicating body provided under a union contract, a Federal judge, or the agency Inspector General. Employees against whom these adverse actions are proposed would have notice and opportunity to respond and retain due process rights to appeal the decision to the Merit System Protections Board.

Sec. 105. Suicide by employees Subsections (a) and (b) ensure that OSC has the information it needs to investigate prohibited personnel practices if an employee commits suicide. OSC would know if someone filed a complaint with OSC, but not necessarily if they made disclosures to the agency. These provisions require the agency to share information with the OSC about a Federal employee who committed suicide if that employee had, prior to his or her death, (1) made any protected disclosure, and (2) had a personnel action taken against him or her by the agency. In such circumstances, OSC is required to examine whether the personnel action was taken because of the disclosure and take appropriate action.

Sec. 106. Training for supervisors This section requires agencies to provide supervisors training on responding to complaints alleging a violation of whistleblower protections available to agency employees.

Sec. 107. Information on whistleblower protections This section requires agencies to keep their employees apprised of the rights and remedies available to them if the agency commits a prohibited personnel practice, including requiring agencies to post such information on their public and internal websites.

Title II: Department of Veterans Affairs Employees

Sec. 201. Prevention of unauthorized access to medical records of employees of the Department of Veterans Affairs This section requires the VA to formulate a plan for protecting employees from having their medical records accessed without authorization. The plan must include how the agency will use technology to block computer access to records for those employees who have no need to access such information. This section will also require Department employees to cease accessing medical files for demographic information where another non-medical database is available, which OSC believes has been an unnecessary invasion of privacy and could be a pretext for accessing unauthorized files.

Sec. 202. Outreach on availability of mental health services available to employees of the Department of Veterans Affairs This section requires the VA to conduct outreach to its employees to make them more aware of any mental health services, including telemedicine, that are available to them.

Sec. 203. Protocols to address threats against employees of the Department of Veterans Affairs This section requires the VA to ensure protocols are in place to address threats from VA patients against VA employees.

Sec. 204. Comptroller General of the United States study on accountability of chiefs of police of Department of Veterans Affairs medical centers This section requires GAO to study the reporting, staffing, accountability, and chain of command structure of the VA police officers at their own medical centers. VerDate Sep