Compliance Tool: Whistleblower Non-Retaliation Policy

Preventing a whistleblower lawsuit is a lot easier than defending against it. The starting point is to create a written policy banning retaliation for whistleblowing and setting out procedures for reporting and investigating retaliation complaints. Here’s a model policy that you can adapt based on the circumstances of your own lab.

Whistleblower Non-Retaliation Policy

1. POLICY

ABC Laboratories has implemented a comprehensive compliance program to ensure that all aspects of its operations meet applicable federal and state laws and regulations. An essential element of our commitment to compliance is to maintain a work environment in which individuals feel free to communicate openly about matters of compliance. For that reason, it is the policy of ABC Laboratories that all personnel are encouraged to ask questions or express concerns about any ABC Laboratories policies or practices that they believe may not be ethical or fully compliant, without fear of suffering retaliation. We want to clearly and emphatically state that retaliation is not only illegal but repugnant to ABC Laboratories’ core values and repeat that no staff member will suffer retaliation or punishment of any kind for engaging in whistleblowing or other protected activities. Period.

2. SCOPE OF PROTECTION

This policy of non-retaliation applies to all members and stakeholders of the ABC Laboratories community, including executives; management; supervisors; full-time, part-time, and temporary employees; volunteers, interns, and other unpaid employees; vendors; contractors; providers; and patients. This policy does not protect individuals who engage in bad faith reporting of retaliation or misconduct.

3. WHAT RETALIATION IS

As used in this policy, “retaliation” includes any action taken to punish, intimidate, threaten, coerce, or discriminate against an individual or group for good faith reporting of wrongdoing or engaging in protected activity. Examples of retaliation include, but are not limited to:

• Termination or suspension of employment, business relationship, or affiliation;
• Disciplinary action;
• Reduction in pay, benefits, assigned hours, or responsibilities;
• Demotion, transfer, or other adverse actions affecting an individual’s employment terms or conditions;
• Negative performance reviews;
• Denial of raises or promotions to which an individual would otherwise be entitled;
• Exclusion from meetings, ostracization, or harassment; and
• Any other adverse activity meant to harass or create a hostile environment.

4. DEFINITIONS

For purposes of this policy:

“Bad faith reporting” means making allegations of violations, misconduct, or other wrongdoing with malicious intent or reckless disregard, for purposes of avoiding accountability for mis-, mal-, or nonfeasance, and/or to deliberately harm another person;

“Good faith reporting” means reporting suspected or actual violations, misconduct, or other wrongdoing, honestly and with reasonable cause to believe that such violations, misconduct, or other wrongdoing actually occurred;

“Protected activity” includes, without limitation:

• Asking questions or raising concerns about a perceived risk, illegal activity, unethical conduct, or other wrongdoing committed by an individual’s employer, including but not limited to fraudulent activity related to federal, state, and private payor healthcare program requirements;
• Disclosing or threatening to disclose information about a situation an individual feels is inappropriate, unethical, or potentially illegal;
• Providing information to or testifying against ABC Laboratories and/or the alleged individuals engaged in the inappropriate, unethical, or illegal activity;
• Disclosing information to a regulatory agency, healthcare oversight agency, or attorney retained by or on behalf of the individual to address what they believe to be violations of federal or state laws, regulations, and/or accreditation standards related to the provision of health care, healthcare program, and payor requirements, HIPAA privacy, or other health care;
• Objecting to or refusing to participate in an activity the individual believes is in violation of ABC Laboratories’ policies, federal or state law, accreditation requirements, or ethical duties;
• Involvement in any compliance or peer-review process, or investigation; or
• Filing a valid or legitimate report, complaint, or incident report.

5. ROLES & RESPONSIBILITIES

5.1 Compliance Officer

The ABC Laboratories compliance officer is responsible for:

• Maintaining an "open door policy" and the Compliance Hotline so that individuals will feel free to come forward and report actual or perceived violations or retaliation;
• Responding to and investigating reports of violations and retaliation swiftly and effectively in accordance with the procedures and protocols set forth below;
• Collaborating with HR to determine appropriate discipline for those found to have engaged in violations, bad faith reporting, or retaliation.

5.2 Managers & Supervisor

Managers and supervisors are responsible for:

• Maintaining an "open door policy" so that the individuals they oversee will feel free to come forward and report actual or perceived violations or retaliation;
• Promptly notifying the compliance officer any such reports they receive;
• Refraining from engaging in retaliation; and
• Protecting employees who engage in protected activity against retaliation.

5.3 Employees

Employees are responsible for promptly reporting any retaliation they suffer or actual or perceived violations they witness or are aware of to their manager, supervisor, or the compliance officer, or via use of the Compliance Hotline.

6. REPORTING & INVESTIGATION PROCEDURES

Individuals who believe they have suffered retaliation for engaging in good faith reporting or other protected activity or are aware of another individual that has, should immediately report the retaliation:

• To their manager or supervisor;
• Directly to the compliance officer, particularly where the retaliation was committed by the manager or supervisor; or
• Using the ABC Laboratories Compliance Hotline [insert phone number and instructions for use of your own hotline].

After a report of retaliation has been received, the compliance officer will immediately investigate the matter, ensuring they follow the procedures and protocols set out in the ABC Laboratories Disciplinary Policy.

7. CONFIDENTIALITY

ABC Laboratories will maintain the confidentiality of individuals who report retaliation and not disclose it except where and to the extent necessary to investigate the allegation or where disclosure is required by law.

8. ACCOUNTABILITY

Employees found to have engaged in retaliation or in bad faith reporting of retaliation or improper conduct will be subject to discipline, up to and including termination, in accordance with the ABC Laboratories Progressive Discipline Policy and the terms of any applicable collective bargaining agreements.