What laws protect health care whistleblowers against retaliation in Virginia?

Employees of assisted living facilities, adult day care centers, and child welfare agencies are covered who in good faith report misconduct or abuse to the Virginia Department of Social Services or any other government agency, entity, or person under contract with the government that is responsible for the protection of residents of those facilities. Employers of the same facilities are covered and prohibited from retaliating or discriminating against employees for reporting such conduct. Id. at 1730.

The purpose of these prohibitions on retaliation is to protect employees of assisted living facilities, adult daycare centers, and child welfare agencies, who are often mandatory reporters under VA Code Ann. § 63.2-1606. Virginia’s health care whistleblower protection statute and its mandatory reporter obligations not only protect employees but also “further[] the well-established public policy endorsing the protection, care, and well-being of Virginia's aged adults” and other vulnerable populations living at these facilities. McFarland v. Virginia Ret. Servs. of Chesterfield, LLC, 477 F. Supp. 2d 727, 733 (E.D. Va. 2007).

A claim for wrongful termination in violation of public policy, also known as a Bowman claim is a narrow exception to the at-will employment doctrine in Virginia. See Bowman v. State Bank of Keysville, 331 S.E.2d 797 (Va. 1985).

An employee may prevail on a Bowman claim only where she falls under one of three categories:

• The employer violated a policy granting an employee a statutory right;
• The employer violated a public policy clearly expressed in a statute and the employee is part of the class of people the statute was intended to protect; or
• The employer terminated the employee because the employee refused to engage in a criminal act.

Rowan v. Tractor Supply Co., 559 S.E.2d 709, 711 (Va. 2002).

Health care whistleblowers who have reported misconduct and/or abuse in good faith and have suffered retaliation fall under the second Bowman category. VA Code Ann. § 63.2-1730 expresses a public policy in favor of protecting health care workers and residents of these facilities, and workers who report abuse are part of the class of people the statute was intended to protect. McFarland, 477 F. Supp. 2d at 735-36. Therefore, a health care worker who suffers retaliation in violation of this statute may be able to bring a claim for wrongful termination in violation of public policy.

An employee can bring an action in any state court that would otherwise have jurisdiction. The statute of limitations is two years from when the employer took the adverse action. Va. Code § 8.01-248.

A health care whistleblower prevailing on a Bowman claim may be able to receive:

• Back pay (lost wages and benefits);
• Front pay; and/or
• Punitive damages.

See Shaw v. Titan Corp., 498 S.E.2d 696, 701 (Va. 1998).