Healthcare professionals employed by the federal government have a legally protected disclosure under the Whistleblower Protection Act of 1989 if they take action to bring non-public evidence of wrongdoing to the public’s eye. That legal protection insulates the whistleblower from workplace retaliation. It gives them a cause of action – or the right to file a legal claim or lawsuit – if they are unlawfully retaliated against.

However, the Whistleblower Protection Act (WPA) has some nuanced aspects that make it different from other whistleblower protection laws. In this article, Dr. Nick Oberheiden, founding partner of the national whistleblower law firm Oberheiden P.C., explains a few of them.

“Federal Employees” Under the Act

A key component of the Whistleblower Protection Act is that it is confined to federal employees. 

In the healthcare context, this covers people who work for the federal government in one of the following agencies:

• Centers for Medicare and Medicaid Services (CMS)
• Food and Drug Administration (FDA)
• Centers for Disease Control (CDC)
• U.S. Department of Health and Human Services (HHS)
• U.S. Department of Veterans Affairs (VA)
• National Institutes of Health (NIH)

Other federal agencies also deal with healthcare-related issues, but the ones listed above are the most prominent among them.

Employees at these and other federal agencies are protected from retaliation regarding their whistleblowing activities under the Act. However, the definition of “employee” is deliberately broad to ensure that as many people as possible fall under it and are not deterred from acting out of fear of retaliation. According to the statute and the Whistleblower Protection Enhancement Act, current or former employees and prospective employees are covered, employees on probationary terms under a federal contract and even temporary employees and personal services contractors.

Reporting Non-Criminal Misconduct Can Trigger Workplace Protections

These covered employees are entitled to the workplace protections of the federal Whistleblower Protection Act if they take the requisite and appropriate steps to blow the whistle on misconduct – even if that misconduct would not amount to a criminal offense. 

Under the Act, at 5 U.S.C. § 2302(b)(8)(A), federal employees become protected whistleblowers if they disclose information to the Government Accountability Office or other law enforcement agency. This information may be related to any of the following:

• Violations of the law or of any rule or regulation
• Gross mismanagement
• Gross waste of funds
• Abuse of authority relating to prohibited personnel practices
• A substantial and specific danger to the public safety or health

It is important to note that blowing the whistle on an agency or a federal employee responsible for mismanagement or the waste of funds requires misconduct to be quite substantial – the Act refers to the “gross waste of funds” and “gross mismanagement.” This has to be significant enough that it imperils the agency’s ability to accomplish its mission. It should not be financial or personnel decisions that reasonable minds could disagree upon (White v. Department of Air Force, 391 F.3d 1377 (Fed. Cir. 2004)).

Additionally, while the language of the Act does not make it explicit, courts have ruled that alleged violations of the law also have to be substantial – or at least non-trivial – to trigger protected whistleblower status. While whistleblowers do not need to cite a particular law or regulation they believe has been violated, the violation they report to a law enforcement agency must be more than mere technicality. 

Similarly, blowing the whistle on threats to public health or safety also requires that the threat be both “substantial” and “specific.” Trivial and vague threats to health and safety do not trigger workplace protections under the Whistleblower Protection Act.

You Only Need a Reasonable Belief that the Issue is a Problem 

Importantly, whistleblowers do not need to uncover complete and conclusive evidence of wrongdoing to benefit from workplace protections under the Whistleblower Protection Act. Requiring them to only blow the whistle on information proving a case of wrongdoing beyond a reasonable doubt would be unreasonable and undermine the statute's goal.

Instead, the Act grants whistleblowers legal protections for reporting or disclosing information that they “reasonably believe” to be evidence of misconduct in the healthcare field. You have a reasonable belief that your disclosure would reveal government wrongdoing if a disinterested observer with access to your facts could also come to the same conclusion. This generally requires substantial evidence to support your conclusions; the more, the better. Revealing non-public information of purported misconduct based on an unreasonable belief does not trigger legal whistleblower protections under the Act, which can expose you to significant disciplinary action.

Whistleblower Protections Insulate You from “Personnel Actions”

While most other whistleblower protection laws protect “workplace whistleblower retaliation” or “adverse employment actions,” the Whistleblower Protection Act refers to “personnel actions.” These include:

• Disciplinary actions and corrective actions, including a suspension or termination
• Promotion
• Appointment to a personal services contractor role
• Transfer or reassignment to a new federal contractor role
• Reinstatement to an old position
• A performance evaluation
• Any other significant change in the duties, responsibilities, conditions, pay, or benefits of federal employment

Note that there are both negative and positive actions in this list. Under the Act, taking adverse action or refusing to take a positive act on an employee because of the employee’s whistleblowing activity is prohibited. If you blow the whistle on healthcare fraud, you are protected from termination or refusal to promote you, so long as those decisions were made because you blew the whistle on the misconduct.

You Have a Right of Action Against Your Employer for Violations

Unfortunately, just because you are protected from a “personnel action” that is meant to retaliate against you for becoming a whistleblower does not mean that your employer will play by the rules. 

“It is not uncommon for federal healthcare agencies to unlawfully retaliate against whistleblowers in violation of the Whistleblower Protection Act. In some cases, they do it willfully, blatantly, and with little regard to the consequences, as supervisors and decision-makers will have weighed the risks and the repercussions and determined that the blowback is worth it for them. In these cases, you have legal recourse, often in the form of a wrongful termination lawsuit. This can recover back wages, repair your professional reputation, and may even lead to reinstatement.” – Dr. Nick Oberheiden, healthcare whistleblower lawyer at Oberheiden P.C.