This article originally appeared in Bloomberg Law on April 24, 2020.
During the coronavirus pandemic, we are now more than ever relying on our governments and health-care providers to take unprecedented action to save lives and meet new and continually evolving challenges.
At the same time, we are seeing ever growing gaps in the systems that check their exercise of power. As we become more reliant on these institutions to get us through this pandemic, we need strong whistleblower protections to encourage insiders with information about misconduct, corruption, or threats public health and safety to speak out.
No Anti-Retaliation Measures
On March 27, President Trump signed the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), which appropriated more than $2 trillion to distribute to individuals and businesses to bolster the economy. This was the third law passed by Congress in response to the crisis, and more are likely.
Neither the CARES Act nor any of the other Covid-19 relief bills contained anti-retaliation protections to encourage employees to shed light on misconduct or fraud in the administration of the funds. These protections are especially vital because the administration has taken actions showing that it is hostile to oversight and accountability.
For instance, the president has removed the head of the Pandemic Response Accountability Committee, a panel of inspectors general created by the CARES Act to oversee the Act’s implementation. In addition, the Department of Health and Human Services—which oversees central players in the government’s pandemic response like the Centers for Disease Control and Prevention and the National Institutes of Health—remains without a Senate-confirmed Inspector General.
The administration has also ordered its employees to treat top-level meetings about the pandemic as classified, which severely restricts the public’s ability to know how the government is handling this crisis. If the public cannot learn about the government’s actions and the internal government watchdogs lack their statutorily prescribed independence, it is more likely that any serious misuse or abuse of power or resources will go unredressed.
To ensure that the government responsibly handles the massive amount of resources needed to address the fallout of the pandemic, Congress should include expansive whistleblower protection in any future coronavirus relief bills to make clear that employees can speak up against waste, abuse, or misconduct in the government’s response to the Covid-19 pandemic without fear of retaliation.
There are a growing number of press reports that hospitals are instructing health-care workers not to speak publicly about safety concerns, such as shortages in personal protective equipment. Doctors, nurses, and other health-care workers are performing an immense public service, standing on the front lines of our fight against the novel coronavirus.
They may be the first to know about critical flaws in our public health infrastructure which could expose them and their patients to serious risk. If a hospital is failing to protect its workers or patients, the public has a right to know. Conversely, if a hospital knows that the public will find out if it takes cost-saving shortcuts at the expense of worker and patient safety, the hospital is more likely to do the right thing.
Despite this vital need for health-care whistleblowers, there is currently no federal law that protects employees from retaliation if they report public health threats, and the federal law governing workplace safety—the Occupational Safety and Health Act—does not allow employees to sue for retaliation.
While legislatures and courts in some states have created remedies for health-care workers in certain circumstances, this legal patchwork leaves most workers unprotected. As Congress takes more action to respond to the pandemic, it should create permanent whistleblower protections for employees who report serious threats to public or worker health and safety.
Not only would such a law provide much-needed protection to the health-care workers risking their lives, but it would put pressure on our health-care institutions to prioritize employee and patient health and safety over economic considerations.
As we turn to our governments and health-care institutions to help us survive this public health crisis, we cannot forget the employees who are critical to ensuring their proper function. As Justice Brandeis noted, sunlight is the best of disinfectants.