Health Law: Retaliatory Discharge
Monday, April 2, 2007
Contributed by: David W. Willett
Waco Court of Appeals constructs "Report" obligations for health care workers claiming retaliatory discharge.
Health care workers who report violations of law are protected from retaliatory discharge pursuant to Section 242.133 of the Texas Health and Safety Code. In applying Section 242.133's protections, the court in Town Hall Estates Whitney, Inc. v. Winters, 2007 WL 416325 (Tex.App. - Waco, 2007), has recently constructed the "report" requirement in two significant ways that health care employers should note. First, the court has held that the statute does not require that the employee actually "believe" a violation of law has occurred, reasoning that it would be "unjust or absurd for the Legislature" to impose a legal duty for reporting violations of law but to omit from the statute a subjective belief requirement. Using similar reasoning, the court also held that there is no technical form or format that the report must satisfy, as "the Legislature could have easily required the employee to have reported 'in accordance with this subchapter,' but it did not."
To the extent "reports" may not have to be written, and can be on subjects that employees don't even believe, health care employers need to consider these developments in the context of managing employee terminations and separations. Establishing good policies, practices and inservice programs for reporting and self-reporting abuse and neglect issues are critical to protecting against the unknown. Equally important, will be the increased use of paid and unpaid leaves of absence pending investigations, decision making days and exit interviews as you satisfy your pre-termination due diligence.
This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners.
