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This entry was published on 2020-06-19
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SECTION 741
Prohibition; health care employer who penalizes employees because of complaints of employer violations
Labor (LAB) CHAPTER 31, ARTICLE 20-C
§ 741. Prohibition; health care employer who penalizes employees
because of complaints of employer violations. 1. Definitions. As used in
this section, the following terms shall have the following meanings:

(a) "Employee" means any person who performs health care services for
and under the control and direction of any public or private employer
which provides health care services for wages or other remuneration.

(b) "Employer" means any partnership, association, corporation, the
state, or any political subdivision of the state which: (i) provides
health care services in a facility licensed pursuant to article
twenty-eight or thirty-six of the public health law; (ii) provides
health care services within a primary or secondary public or private
school or public or private university setting; (iii) operates and
provides health care services under the mental hygiene law or the
correction law; or (iv) is registered with the department of education
pursuant to section sixty-eight hundred eight of the education law.

(c) "Agent" means any individual, partnership, association,
corporation, or group of persons acting on behalf of an employer.

(d) "Improper quality of patient care" means, with respect to patient
care, any practice, procedure, action or failure to act of an employer
which violates any law, rule, regulation or declaratory ruling adopted
pursuant to law, where such violation relates to matters which may
present a substantial and specific danger to public health or safety or
a significant threat to the health of a specific patient.

(e) "Improper quality of workplace safety" means, with respect to
employees, any practice, procedure, action or failure to act of an
employer which violates any law, rule, regulation, or declaratory ruling
adopted pursuant to law where such violation relates to matters which
may present an unsafe workplace environment or risk of employee safety
or a significant threat to the health of a specific employee.

(f) "Public body" means:

(1) the United States Congress, any state legislature, or any elected
local governmental body, or any member or employee thereof;

(2) any federal, state or local court, or any member or employee
thereof, any grand or petit jury;

(3) any federal, state or local regulatory, administrative or public
agency or authority, or instrumentality thereof;

(4) any federal, state or local law enforcement agency, prosecutorial
office, or police or peace officer;

(5) any federal, state or local department of an executive branch of
government; or

(6) any division, board, bureau, office, committee or commission of
any of the public bodies described in subparagraph one, two, three, four
or five of this paragraph.

(g) "Retaliatory action" means the discharge, suspension, demotion,
penalization or discrimination against an employee, or other adverse
employment action taken against an employee in the terms and conditions
of employment.

(h) "Supervisor" means any person within an employer's organization
who has the authority to direct and control the work performance of an
employee, or who has the authority to take corrective action regarding
the violation of a law, rule or regulation to which an employee submits
a complaint.

2. Retaliatory action prohibited. Notwithstanding any other provision
of law, no employer shall take retaliatory action against any employee
because the employee does any of the following:

(a) discloses or threatens to disclose to a supervisor, to a public
body, to a news media outlet, or to a social media forum available to
the public at large, an activity, policy or practice of the employer or
agent that the employee, in good faith, reasonably believes constitutes
improper quality of patient care or improper quality of workplace
safety; or

(b) objects to, or refuses to participate in any activity, policy or
practice of the employer or agent that the employee, in good faith,
reasonably believes constitutes improper quality of patient care or
improper quality of workplace safety.

3. Application. The protection against retaliatory personnel action
provided by subdivision two of this section shall not apply unless the
employee has brought the improper quality of patient care or improper
quality of workplace safety to the attention of a supervisor and has
afforded the employer a reasonable opportunity to correct such activity,
policy or practice. This subdivision shall not apply to an action or
failure to act described in paragraph (a) of subdivision two of this
section where the improper quality of patient care or improper quality
of workplace safety described therein presents an imminent threat to
public health or safety or to the health of a specific patient or
specific health care employee and the employee reasonably believes in
good faith that reporting to a supervisor would not result in corrective
action.

4. Enforcement. A health care employee may seek enforcement of this
section pursuant to paragraph (d) of subdivision four of section seven
hundred forty of this article.

5. Relief. In any court action brought pursuant to this section it
shall be a defense that the personnel action was predicated upon grounds
other than the employee's exercise of any rights protected by this
section.