VA Code Ann. §§ 63.2-1730 and 31 protect certain health care workers from retaliation for reporting misconduct and/or abuse in assisted living facilities, adult day care centers, and child welfare agencies.
An employee who reports misconduct and/or abuse in an assisted living facility, adult day care center, or child welfare agency and is retaliated against for reporting may be able to file a claim for wrongful discharge in violation of Virginia public policy against her employer.
And the Virginia Whistleblower Protection Law, effective July 1, 2020, protects health care workers.
Which employees and employers are covered under Virginia’s health care whistleblower protection law? ExpandEmployees 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.
What is the purpose of the anti-retaliation prohibitions in VA Code Ann. § 63.2-1730 and 1731? ExpandThe 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).
What is a claim for wrongful termination in violation of public policy in Virginia? ExpandA 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).
What must an employee prove to prevail on a Bowman claim? ExpandAn employee may prevail on a Bowman claim only where she falls under one of three categories:
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.
Where and when may an employee file a Bowman wrongful discharge claim? ExpandAn 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.
What remedies are available to an employee in a Bowman wrongful discharge claim? ExpandA health care whistleblower prevailing on a Bowman claim may be able to receive:
See Shaw v. Titan Corp., 498 S.E.2d 696, 701 (Va. 1998).
In April 2020, Virginia enacted a whistleblower protection law. It will provide robust protection for health care workers. Click here to read more about Virginia’s whistleblower protection statute.
New Virginia Whistleblower Law Offers Broad Employee ProtectionHealth care workers employed at federal contractors and grantees are also protected under the NDAA whistleblower protection law. See our article Whistleblower Protections Under the National Defense Authorization Act.
Health care workers that suffer retaliation for reporting Medicaid fraud are protected under Virginia’s Fraud Against Taxpayers 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. Virginia health care whistleblowers may also be eligible for a qui tam whistleblower award under the False Claims Act.
To find out if you have a whistleblower claim in Virginia, contact Jason Zuckerman at (202) 262-8959 to schedule a confidential consultation.
