2013 Wisconsin Statutes & Annotations
146. Miscellaneous health provisions.
146.997 Health care worker protection.
146.997 Health care worker protection.
(1) Definitions. In this section:
(a) "Department" means the department of workforce development.
(b) "Disciplinary action" has the meaning given in s. 230.80 (2).
(c) "Health care facility" means a facility, as defined in s. 647.01 (4), or any hospital, nursing home, community-based residential facility, county home, county infirmary, county hospital, county mental health complex or other place licensed or approved by the department of health services under s. 49.70, 49.71, 49.72, 50.03, 50.35, 51.08 or 51.09 or a facility under s. 45.50, 51.05, 51.06, 233.40, 233.41, 233.42 or 252.10.
(d) "Health care provider" means any of the following:
1. A nurse licensed under ch. 441.
2. A chiropractor licensed under ch. 446.
3. A dentist licensed under ch. 447.
4. A physician, podiatrist, perfusionist, physical therapist, or physical therapist assistant licensed under ch. 448.
5. An occupational therapist, occupational therapy assistant, physician assistant or respiratory care practitioner certified under ch. 448.
6. A dietician certified under subch. V of ch. 448.
7. An optometrist licensed under ch. 449.
8. A pharmacist licensed under ch. 450.
9. An acupuncturist certified under ch. 451.
10. A psychologist licensed under ch. 455.
11. A social worker, marriage and family therapist or professional counselor certified under ch. 457.
12. A speech-language pathologist or audiologist licensed under subch. II of ch. 459 or a speech and language pathologist licensed by the department of public instruction.
13. A massage therapist or bodywork therapist licensed under ch. 460.
14. An emergency medical technician licensed under s. 256.15 (5) or a first responder.
15. A partnership of any providers specified under subds. 1. to 14.
16. A corporation or limited liability company of any providers specified under subds. 1. to 14. that provides health care services.
17. A cooperative health care association organized under s. 185.981 that directly provides services through salaried employees in its own facility.
18. A hospice licensed under subch. IV of ch. 50.
19. A rural medical center, as defined in s. 50.50 (11).
20. A home health agency, as defined in s. 50.49 (1) (a).
(2) Reporting protected.
(a) Any employee of a health care facility or of a health care provider who is aware of any information, the disclosure of which is not expressly prohibited by any state law or rule or any federal law or regulation, that would lead a reasonable person to believe any of the following may report that information to any agency, as defined in s. 111.32 (6) (a), of the state; to any professionally recognized accrediting or standard-setting body that has accredited, certified or otherwise approved the health care facility or health care provider; to any officer or director of the health care facility or health care provider; or to any employee of the health care facility or health care provider who is in a supervisory capacity or in a position to take corrective action:
1. That the health care facility or health care provider or any employee of the health care facility or health care provider has violated any state law or rule or federal law or regulation.
2. That there exists any situation in which the quality of any health care service provided by the health care facility or health care provider or by any employee of the health care facility or health care provider violates any standard established by any state law or rule or federal law or regulation or any clinical or ethical standard established by a professionally recognized accrediting or standard-setting body and poses a potential risk to public health or safety.
(b) An agency or accrediting or standard-setting body that receives a report under par. (a) shall, within 5 days after receiving the report, notify the health care facility or health provider that is the subject of the report, in writing, that a report alleging a violation specified in par. (a) 1. or 2. has been received and provide the health care facility or health care provider with a written summary of the contents of the report, unless the agency, or accrediting or standard-setting body determines that providing that notification and summary would jeopardize an ongoing investigation of a violation alleged in the report. The notification and summary may not disclose the identity of the person who made the report.
(c) Any employee of a health care facility or health care provider may initiate, participate in or testify in any action or proceeding in which a violation specified in par. (a) 1. or 2. is alleged.
(d) Any employee of a health care facility or health care provider may provide any information relating to an alleged violation specified in par. (a) 1. or 2. to any legislator or legislative committee.
(3) Disciplinary action prohibited.
(a) No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person because the person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) or because the health care facility, health care provider or employee believes that the person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d).
(b) No health care facility or health care provider and no employee of a health care facility or health care provider may take disciplinary action against, or threaten to take disciplinary action against, any person on whose behalf another person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) or because the health care facility, health care provider or employee believes that another person reported in good faith any information under sub. (2) (a), in good faith initiated, participated in or testified in any action or proceeding under sub. (2) (c) or provided in good faith any information under sub. (2) (d) on that person's behalf.
(c) For purposes of pars. (a) and (b), an employee is not acting in good faith if the employee reports any information under sub. (2) (a) that the employee knows or should know is false or misleading, initiates, participates in or testifies in any action or proceeding under sub. (2) (c) based on information that the employee knows or should know is false or misleading or provides any information under sub. (2) (d) that the employee knows or should know is false or misleading.
(4) Enforcement.
(a) Any employee of a health care facility or health care provider who is subjected to disciplinary action, or who is threatened with disciplinary action, in violation of sub. (3) may file a complaint with the department under s. 106.54 (6). If the department finds that a violation of sub. (3) has been committed, the department may take such action under s. 111.39 as will effectuate the purpose of this section.
(c) Section 111.322 (2m) applies to a disciplinary action arising in connection with any proceeding under par. (a).
(5) Civil penalty. Any health care facility or health care provider and any employee of a health care facility or health care provider who takes disciplinary action against, or who threatens to take disciplinary action against, any person in violation of sub. (3) may be required to forfeit not more than $1,000 for a first violation, not more than $5,000 for a violation committed within 12 months of a previous violation and not more than $10,000 for a violation committed within 12 months of 2 or more previous violations. The 12-month period shall be measured by using the dates of the violations that resulted in convictions.
(6) Posting of notice. Each health care facility and health care provider shall post, in one or more conspicuous places where notices to employees are customarily posted, a notice in a form approved by the department setting forth employees' rights under this section. Any health care facility or health care provider that violates this subsection shall forfeit not more than $100 for each offense.
History: 1999 a. 176, 186; 2001 a. 38, 70, 74, 89, 105; 2003 a. 33; 2005 a. 22; 2007 a. 20 s. 9121 (6) (a); 2007 a. 130; 2009 a. 165, 355.
Because sub. (2) (a), (c), and (d) only permit employees to file reports and sub. (3), by its plain terms, can only protect persons who have made a report under sub. (2) (a), (c), or (d), it would be absurd to broadly interpret protected persons under sub. (3) to include non-employees. Further, while sub. (3) prohibits disciplinary action against, "any person," because disciplinary action is limited to "action taken with respect to an employee," it would be contrary to common sense and reason to conclude that sub. (3)'s reference to "any person" includes non-employees. Masri v. State of Wisconsin Labor and Industry Review Commission, 2013 WI App 62, 348 Wis. 2d 1, 832 N.W.2d 139, 12-1047.
While this section does not explicitly define the term "employee," and neither LIRC nor a court has ruled upon the statute's definition of the term, in other statutory schemes when the term employee has been left undefined, courts have determined that some sort of compensation is essential to an employee/employer relationship. LIRC has consistently looked to how an individual is compensated for his or her work when determining whether an individual is an employee, requiring that there be some tangible benefit received apart from salary. LIRC's conclusion that the plaintiff did not receive a tangible benefit from unpaid internship in this case was reasonable. Masri v. State of Wisconsin Labor and Industry Review Commission, 2013 WI App 62, 348 Wis. 2d 1, 832 N.W.2d 139, 12-1047.
Wisconsin Health Care Workers: Whistleblowers Protection. Neuser. Wis. Law. March 2004.
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