What laws protect health care whistleblowers in Maryland?
The Maryland Health Care Worker Whistleblower Protection Act, Md. Health Occ. § 1-501 et seq. protects health care workers who blow the whistle on an employer’s violation of law, rule, or regulation.
What employees and employers are covered?
Licensed or board-certified health care workers who are not state employees and receive wages are covered by the Act. Id. at § 1-501(c). Any employer other than the state who employs licensed or board-certified health care workers is covered. Id.
What must a health care worker prove to prevail in a Maryland Health Care Worker Whistleblower Protection Act claim?
The Act protects health care whistleblowers from retaliation where they disclose or threaten to disclose an employer’s violation of law, rule, or regulation to a supervisor or state licensing board; testify before or provide information to a public entity conducting an investigation or inquiry into such violation; or refuse to participate in any such violation. Id. at § 1-502.
To prevail on a claim of retaliation under the Act, a whistleblower must prove:
- She has a reasonable and good faith belief that the employer engaged in or continues to engage in an activity, policy, or practice that is a violation of law, rule, or regulation;
- The activity that is the subject of the disclosure creates a substantial and specific threat to public health and/or safety; and
- Before reporting the violation to a state licensing board, the whistleblower
- Reported in writing the activity, policy, or practice internally to a supervisor or administrator with authority and gave the employer reasonable opportunity to correct the violation; or
- Followed the corporate compliance plan outlining who to notify of an alleged violation of law, rule, or regulation if the employer has a compliance plan.
Id. at § 1-502.
Where and when may an employee bring a Maryland Health Care Worker Whistleblower Protection Act action?
An employee may file a civil action in court in the county where:
- The violation occurred;
- She resides;
- The employer has its principal offices in the state.
An employee must file a civil action within one year of when the employer committed the violation of the statute or within one year of when the employee first became aware of the violation. Id. at § 1-504.
What defenses may an employer assert?
An employer may assert that it took the adverse employment action against the employee because of any reason other than the employee’s participation in protected whistleblowing. Id. at § 1-506.
What remedies are available to a prevailing whistleblower?
Available remedies are:
- Issuance of an injunction to restrain the employer from continuing to violate the statute;
- Reinstatement to the same or an equivalent position as before the violation;
- Removal of any adverse personnel record entries related to prohibited retaliation;
- Reinstatement of fringe benefits and seniority rights;
- Payment of compensation for lost wages and benefits; and/or
- Payment of reasonable attorneys’ fees and costs.
Id. at § 1-505.
Does the Maryland Health Care Worker Whistleblower Protection Act prohibit post-employment retaliatory actions such as blacklisting?
Probably not. While the Maryland Court of Appeals has not covered this issue, the District Court has held that the statute only prohibits retaliation during the course of employment. See Doe v. Johns Hopkins Health Sys. Corp., 274 F.Supp.3d 355, 363-64 (D. Md. 2017) (holding plain language of statute only prohibits adverse actions that effect the “terms and conditions of employment,” which does not cover post-employment retaliation).
Does an employee have to make an external disclosure to be protected under the Maryland Health Care Worker Whistleblower Protection Act?
No. The Maryland Court of Appeals has held that externally reporting a violation to a state licensing board is not a requirement for filing a civil claim where an employee has reported the violation internally. Lark v. Montgomery Hospice, Inc., 994 A.2d 968 (Md. 2010).
What other Maryland and federal laws protect health care whistleblowers against retaliation?
Health care workers that suffer retaliation for reporting Medicaid fraud are protected under Maryland’s False Claims Act, and health care workers that suffer retaliation for reporting fraud against the federal government are protected under the whistleblower protection provision of the False Claims Act. Maryland health care whistleblowers may also be eligible for a qui tam whistleblower award under the False Claims Act.
Health care workers employed at federal contractors or grantees in Maryland are also protected under the NDAA whistleblower protection law. See our article Whistleblower Protections Under the National Defense Authorization Act. Maryland health care whistleblowers may also be eligible for a qui tam whistleblower award under the False Claims Act.