Dallas Employment Lawyer Blog
Over 1.6 million Texans were employed in the healthcare and social assistance industry by 2019, and that number is expected to grow steadily over the next decade. Nursing in particular is one of the top five occupations in the state by number of online “help wanted” ads. Because of that, it is all the more important that healthcare workers here are well-trained and competent, and also are empowered to say something when they see something that puts patient health or safety at risk.
Fortunately, the Texas Health & Safety Code provides some powerful whistleblower protections that are unique to the healthcare industry. Unfortunately, figuring out if you fall within those protections is not always simple because the Code has so many different components. Making things harder, Texas courts have interpreted relatively few parts of the Texas Health & Safety Code compared to other employment laws. This article is meant to provide the reader with some basic information about some of the protections that healthcare workers (and others) have under this law, as well as limitations in the Code.
So, what kinds of whistleblower protections do you have under the Health & Safety Code? That depends who you are, where you work, and what you report.
The main anti-retaliation rules are found in sections 161.134 and 161.135, and prohibit “a hospital, mental health facility, or treatment facility” from engaging in retaliation against someone for reporting a violation of law “to the employee’s supervisor, an administrator of the facility, a state regulatory agency, or a law enforcement agency.” Things like discipline or suspensions can be considered retaliation. Because the point of this law is to encourage good faith whistleblowers to protect patients, you do not need to necessarily prove the reported action did violate the law, only that it was conduct that a reasonable person would conclude violated the law in light of their training and experience. That could include things like HIPAA violations, someone else failing to report something illegal, stealing from or abusing patients, or a procedure being performed without informed consent.
One very powerful protection under the Code is that an employer’s adverse actions under those sections are presumed to be retaliatory if done within 60 days of when the person reported the violations of law. The employer then has the burden to disprove that presumption. And, those protections cover employees as well as non-employees such as contractors, visitors, volunteers or patients.[1]
Other parts of the Code cover assisted living facilities (section 247.068), care facilities for people with intellectual disabilities (section 252.132), and hospice or home health services (section 142.0093). They generally prohibit retaliation for things such as filing a complaint, presenting a grievance, or providing in good faith information relating to the services those sorts of entities provide. Section 260A.014 also protects employees and contractors who “initiat[ed] or cooperat[ed] in any investigation or proceeding of a governmental entity relating to care, services, or conditions”). Sections like 260A.015 explicitly extend anti-retaliation protections to volunteers, residents, or patient family at assisted living, pediatric care, or other institutions.
Another important thing to keep in mind is how long you have to protect your rights. Unfortunately, that is one area where the Texas Health & Safety Code is not clear or particularly generous to employees. Any retaliation lawsuit under sections 161.134 and 161.135 has to be filed by 179 days from when you discovered or reasonably should have discovered that you were retaliated against. Under section 260A.014, you likewise would have 90 days to file suit. With other sections no explicit deadlines are included, but because Texas courts will generally apply some sort of deadline anyway, in situations where those sections apply it is probably best to assume you have to move fast.
If your employer violated the Health & Safety Code’s anti-retaliation rules, after trial it may be required to reinstate you and/or compensate you for lost wages and mental anguish. Under the Code you can also recover for the cost of your attorney if you win your case.
The upshot of all of this is that if you are a healthcare employee or contractor of some kind and you believe you may have been, or might be, retaliated against for reporting something that put your patients’ health and safety at risk, your employer may have violated the law. To learn more about your rights, you should consult with a Dallas Employment Attorney today.
[1] Unfortunately, courts in Texas have not extended many aspects of the Texas Health and Safety Code to state-run health facilities. A few provisions protect employees and other people from retaliation by state-run facilities for things like cooperating with the inspector general or office of the independent ombudsman (sections 552.104, 555.060).