The 2020 presidential election was historic in many ways: a record 168 million people, 64% of the eligible voting population, came out to vote despite the pandemic. A woman of color will soon occupy the office of Vice President for the first time. I wish President-elect Biden and Vice President-elect Harris the very best of luck as they work to address the enormous challenges facing our country.
So, what does the arrival of the Biden-Harris administration mean for whistleblowers? Good news: this transitional moment creates significant new opportunities for advocates to strengthen whistleblower protections in a bipartisan manner.
As reflected in a September 2020 Marist poll sponsored by the Whistleblower News Network, Americans from both political parties view whistleblower protection as a critical component of any effort to increase transparency and accountability in government as well as the private sector. The incoming administration has already made a number of commitments on this front. Today I would like to discuss how whistleblower advocates can help the Biden-Harris administration make progress on the Covid-19 pandemic while fulfilling its transparency and accountability commitments. In my next blog post, I will discuss opportunities for progress on climate change.
The Biden-Harris team got off to a strong start by appointing whistleblower Eric Bright to the Coronavirus Task Force, providing hope to all whistleblowers that their honesty and courage will ultimately be recognized and rewarded. Now the incoming administration must turn its attention to ensuring that the gradual restart of the economy is performed with a close eye to (1) protecting frontline workers, (2) safeguarding public health and patient safety and (3) preventing fraudulent diversion of economic recovery funds.
Transparency and accountability will be essential to getting employers to take needed steps to protect frontline workers from Covid-19. In April, the Washington Post reported that the Occupational Safety & Health Administration (OSHA) was quietly sitting on a backlog of thousands of complaints from private sector workers reporting failures by their employers to take necessary Covid-19 protection measures. An August report by the Labor Department’s Office of Inspector General set forth a series of recommendations for OSHA to remedy the backlog, including beefing up staffing. To date, OSHA has not implemented most of these recommendations; nor has it imposed any Personal Protective Equipment (PPE) standards for Covid-19, pointing employers to PPE standards developed for flying objects, liquid chemicals and the like.
The incoming administration can go a long way to helping frontline workers threatened by Covid-19 by:
- Implementing the Inspector General’s recommendations for reforming OSHA, especially the call to provide the staffing needed to address whistleblower complaints;
- Writing rules at OSHA to protect workers from Covid-related threats to their health and safety; and
- Supporting legislation allowing whistleblowers to go to court when OSHA fails to act.
Patient Safety and Public Health
Although private sector employees have some whistleblower protection if they report Covid-related threats to their own safety, they have no protection if they report Covid-related threats to patient safety and public health. This loophole is particularly problematic at hospitals, nursing homes, and community health clinics, where frontline workers commonly witness employers taking dangerous shortcuts in pursuit of expanded profit.
Federal workers with evidence of Covid-related misconduct likewise require greater protection, especially considering the enormous responsibilities held by federal agencies for ensuring the safety of vaccines and therapeutics. Under the Whistleblower Protection Enhancement Act, workers who are retaliated against for raising concerns about threats to patient safety or public health must bring their cases to the Merit Systems Protection Board (MSPB). Unfortunately, the MSPB currently has no members due to the Senate’s failure to act on the Trump Administration’s nominations, and it has a backlog of over 2,500 cases.
The incoming administration can ensure transparency and accountability for wrongdoing in connection with patient safety and public health by:
- Supporting legislation, modeled after the False Claims Act, that protects and rewards private-sector whistleblowers whose evidence of such wrongdoing helps to achieve successful prosecutions;
- Immediately putting forward nominations to the MSPB and securing confirmation by the Senate; and
- Supporting legislation allowing whistleblowers to go to court when the MSPB fails to act on their complaints.
Preventing Fraudulent Diversion of Covid Relief Funds
Transparency and accountability will likewise be essential for preventing large-scale fraud in the midst of massive Covid-related government spending. Covid relief packages enacted to date total nearly $2.7 trillion. With ambitious commitments to vaccine manufacturing and distribution, health care, and rebuilding the economy, the incoming Administration, working with Congress, will likely embark upon even greater spending in the next several years.
The pace and amount of this federal spending is unprecedented, which makes sense given the gravity of the crisis. However, our long experience with national emergencies teaches us that some will attempt to profit from others’ misfortune and to divert precious resources away from the coronavirus response. With millions of lives and livelihoods at stake, the incoming administration will need to ensure that coronavirus funding is sent to its intended recipients and spent in accordance with the law.
The Biden-Harris administration can ensure effective use of Covid-19 relief funds by developing a comprehensive strategy to combat waste, fraud and abuse. This strategy should include:
- Launching a robust educational effort to alert potential whistleblowers of opportunities under the False Claims Act to file confidential complaints and to secure financial awards for helping prosecutors secure monetary sanctions against wrongdoers;
- Reversing the ill-advised 2018 Department of Justice guidance calling for arbitrary dismissals of whistleblower cases under the False Claims Act; and
- Supporting the amendments to strengthen the False Claims Act put forward by Senator Chuck Grassley (R-IA).