COVID–19 Whistleblower Protection Act

II 117TH CONGRESS 1ST SESSION S. 268 To protect certain whistleblowers seeking to ensure accountability and over- sight of the Nation’s COVID–19 pandemic response, and for other pur- poses. IN THE SENATE OF THE UNITED STATES FEBRUARY 4, 2021 Ms. WARREN (for herself, Mrs. FEINSTEIN, Mr. MARKEY, Ms. SMITH, Mr. BLUMENTHAL, Mr. BROWN, Ms. HIRONO, Mr. WYDEN, Ms. KLOBUCHAR, Mr. SANDERS, Mr. DURBIN, Ms. BALDWIN, Mr. MERKLEY, Mr. VAN HOLLEN, and Mr. WHITEHOUSE) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To protect certain whistleblowers seeking to ensure account- ability and oversight of the Nation’s COVID–19 pan- demic response, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘COVID–19 Whistle- 4 blower Protection Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act— 7 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 2 •S 268 IS (1) the term ‘‘abuse of authority’’ means an ar- 1 bitrary and capricious exercise of authority by a con- 2 tracting officer or employee that adversely affects 3 the rights of any individual, or that results in per- 4 sonal gain or advantage to the officer or employee 5 or to preferred other individuals; 6 (2) the term ‘‘CARES Act’’ means the CARES 7 Act (Public Law 116–136); 8 (3) the term ‘‘Coronavirus pandemic-related 9 program, project, or activity’’— 10 (A) means a program, project, or activity 11 of the executive branch of the Federal Govern- 12 ment authorized under or carried out using 13 amounts made available under an Act to re- 14 spond to or to provide aid or assistance to ad- 15 dress, relief from, or funding to address the 16 outbreak of COVID–19 that is enacted before, 17 on, or after the date of enactment of this Act; 18 and 19 (B) includes any program, project, or ac- 20 tivity of the executive branch of the Federal 21 Government authorized under or carried out 22 using amounts made available under— 23 (i) the Paycheck Protection Program 24 and Health Care Enhancement Act (Public 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 3 •S 268 IS Law 116–139), or an amendment made by 1 that Act; 2 (ii) the CARES Act, or an amend- 3 ment made by that Act; 4 (iii) the Families First Coronavirus 5 Response Act (Public Law 116–127), or an 6 amendment made by that Act; 7 (iv) the Coronavirus Preparedness and 8 Response Supplemental Appropriations 9 Act, 2020 (Public Law 116–123), or an 10 amendment made by that Act; or 11 (v) division M or N of the Consoli- 12 dated Appropriations Act, 2021 (Public 13 Law 116–260), or an amendment made by 14 that division; 15 (4) the term ‘‘covered funds’’ means any con- 16 tract, subcontract, grant, subgrant, loan, loan guar- 17 antee, or other payment for which— 18 (A) the Federal Government provides any 19 portion of the funds or property that is pro- 20 vided, requested, or demanded; and 21 (B) any portion of the funds are appro- 22 priated or otherwise made available under or to 23 carry out a Coronavirus pandemic-related pro- 24 gram, project, or activity; 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 4 •S 268 IS (5) the term ‘‘employee’’— 1 (A) except as provided under subparagraph 2 (B), means an individual performing services on 3 behalf of an employer, including any individual 4 working for an employer under a contract with 5 such employer (including a contractor, subcon- 6 tractor, or agent of an employer); and 7 (B) does not include any Federal employee 8 or member of the uniformed services (as that 9 term is defined in section 101(a)(5) of title 10, 10 United States Code); 11 (6) the term ‘‘non-Federal employer’’— 12 (A) means any employer— 13 (i) with respect to covered funds— 14 (I) the contractor, subcontractor, 15 grantee, subgrantee, or recipient, as 16 the case may be, if the contractor, 17 subcontractor, grantee, subgrantee, or 18 recipient is an employer; and 19 (II) any professional membership 20 organization, certification or other 21 professional body, any agent or li- 22 censee of the Federal Government, or 23 any person acting directly or indi- 24 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 5 •S 268 IS rectly in the interest of an employer 1 receiving covered funds; or 2 (ii) with respect to covered funds re- 3 ceived by a State or local government, the 4 State or local government receiving the 5 funds and any contractor or subcontractor 6 of the State or local government; and 7 (B) does not mean any department, agen- 8 cy, or other entity of the Federal Government; 9 (7) the term ‘‘protected individual’’ means— 10 (A) an employee of, former employee of, or 11 individual seeking employment with, any non- 12 Federal employer receiving covered funds; or 13 (B) a Federal personal services contractor 14 receiving covered funds, former such Federal 15 personal services contractor, or applicant for a 16 Federal personal services contract involving 17 such funds; 18 (8) the term ‘‘reprisal’’ means an action (or, as 19 applicable, inaction) that is discharging, demoting, 20 blacklisting, or acting or failing to take an action in 21 a manner prejudicial against, or otherwise discrimi- 22 nating against in any way (including in the hiring 23 process and including by the threat of any such ac- 24 tion or inaction) a protected individual as described 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 6 •S 268 IS in section 3(a)(1) for a reason described in subpara- 1 graph (A) or (B) of such section; and 2 (9) the term ‘‘State or local government’’ 3 means— 4 (A) the government of each of the several 5 States, the District of Columbia, the Common- 6 wealth of Puerto Rico, Guam, American Samoa, 7 the Virgin Islands, the Commonwealth of the 8 Northern Mariana Islands, or any other terri- 9 tory or possession of the United States; or 10 (B) the government of any political sub- 11 division of a government listed in subparagraph 12 (A). 13 SEC. 3. PROTECTING WHISTLEBLOWERS. 14 (a) PROHIBITION OF REPRISALS.— 15 (1) IN GENERAL.—A protected individual may 16 not be discharged, demoted, blacklisted, prejudiced 17 by any action or lack of action, or otherwise dis- 18 criminated against in any way (including in the hir- 19 ing process and including by the threat of any such 20 action or inaction) for— 21 (A) disclosing, being perceived as dis- 22 closing, or preparing to disclose (including as- 23 sisting in disclosing, being perceived as assist- 24 ing in disclosing, or preparing to assist in dis- 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 7 •S 268 IS closing and including a disclosure made in the 1 ordinary course of the duties of the protected 2 individual) to an officer or entity described in 3 paragraph (2) information that the protected 4 individual reasonably believes is evidence of 5 misconduct that violates, obstructs, or under- 6 mines any statute, rule, or regulation with re- 7 spect to any Coronavirus pandemic-related pro- 8 gram, project, or activity, including— 9 (i) gross mismanagement of an agency 10 contract, subcontract, grant, or subgrant 11 relating to covered funds; 12 (ii) a gross waste of covered funds; 13 (iii) a substantial and specific danger 14 to public health or safety; 15 (iv) an abuse of authority related to 16 the distribution, implementation, or use of 17 covered funds, including conflict of interest 18 or partiality; and 19 (v) a violation of any statute, rule, or 20 regulation related to an agency contract, 21 subcontract (including the competition for 22 or negotiation of a contract or sub- 23 contract), grant, or subgrant, awarded or 24 issued relating to covered funds; or 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 8 •S 268 IS (B) refusing to obey an order that the pro- 1 tected individual reasonably believes would re- 2 quire that individual to violate a statute, rule, 3 or regulation with respect to any Coronavirus 4 pandemic-related program, project, or activity. 5 (2) OFFICERS AND ENTITIES.—The officers and 6 entities described in this paragraph are— 7 (A) the Pandemic Response Accountability 8 Committee; 9 (B) an inspector general, including the 10 Special Inspector General for Pandemic Relief; 11 (C) the Congressional Oversight Commis- 12 sion; 13 (D) the Comptroller General of the United 14 States; 15 (E) a Member of Congress; 16 (F) a congressional committee; 17 (G) a State or Federal regulatory or law 18 enforcement agency; 19 (H)(i) an individual with supervisory au- 20 thority over a protected individual; or 21 (ii) another individual who— 22 (I) has authority to investigate, dis- 23 cover, or terminate misconduct; and 24 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 9 •S 268 IS (II) works for the non-Federal em- 1 ployer (in the case of a protected individual 2 described in section 2(7)(A)), or the Fed- 3 eral Government (in the case of a pro- 4 tected individual described in section 5 2(7)(B)); 6 (I) a court or grand jury; 7 (J) an officer or representative of a labor 8 organization; or 9 (K) the head of a Federal agency or a des- 10 ignee of such a head. 11 (3) APPLICATION.— 12 (A) IN GENERAL.—For the purposes of 13 paragraph (1)— 14 (i) a protected individual who initiates 15 or provides evidence of misconduct by a 16 contractor, subcontractor, grantee, or sub- 17 grantee in any judicial or administrative 18 proceeding relating to waste, fraud, or 19 abuse in connection with a Federal con- 20 tract or grant shall be deemed to have 21 made a disclosure covered by such para- 22 graph; and 23 (ii) any discharge, demotion, discrimi- 24 nation, or other reprisal described in para- 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 10 •S 268 IS graph (1) is prohibited even if it is under- 1 taken at the request of an executive branch 2 officer or employee, unless the request 3 takes the form of a non-discretionary di- 4 rective and is within the authority of the 5 executive branch official making the re- 6 quest. 7 (B) PROTECTION OF WHISTLEBLOWER 8 IDENTITY.— 9 (i) IN GENERAL.—Except as required 10 by law, an officer or entity described in 11 paragraph (2) that receives information 12 under paragraph (1) and any individual or 13 entity to which the officer or entity dis- 14 closes the information may not disclose the 15 identity or identifying information of the 16 protected individual providing the informa- 17 tion without explicit written consent of the 18 protected individual. 19 (ii) NOTICE.—If disclosure of the 20 identity or identifying information of a 21 protected individual providing information 22 under paragraph (1) is required by law, 23 the recipient shall provide timely notice of 24 the disclosure to the protected individual. 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 11 •S 268 IS (b) INVESTIGATION OF COMPLAINTS.— 1 (1) COMPLAINTS.— 2 (A) IN GENERAL.—A protected individual 3 who believes that the individual has been sub- 4 jected to a reprisal prohibited under subsection 5 (a) may, within 3 years after learning of the al- 6 leged reprisal, submit a complaint regarding the 7 reprisal to the Secretary of Labor in accordance 8 with paragraph (2). 9 (B) RESPONSE.—Not later than 60 days 10 after the submission of a complaint under sub- 11 paragraph (A), the applicable non-Federal em- 12 ployer (or the applicable agency head in the 13 case of a Federal personal services contract in- 14 volving covered funds) shall submit an answer 15 to the complaint to the Secretary of Labor. 16 (2) REMEDY AND ENFORCEMENT AUTHOR- 17 ITY.— 18 (A) RULES AND PROCEDURES.—Except to 19 the extent provided otherwise in this section, 20 any action alleging a reprisal prohibited under 21 subsection (a) shall be governed, to the max- 22 imum extent practicable, by the rules and pro- 23 cedures for administrative and judicial enforce- 24 ment, including for investigations, civil actions, 25 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 12 •S 268 IS appeals, and relief, set forth under section 1 7623(d) of the Internal Revenue Code of 1986. 2 (B) BURDEN OF PROOF.—The Secretary 3 of Labor, or the officer presiding in a judicial 4 or administrative proceeding, shall apply the 5 legal burdens of proof specified in section 6 1221(e) of title 5, United States Code, in deter- 7 mining whether a reprisal prohibited under sub- 8 section (a) has occurred in accordance with the 9 rules and procedures under subparagraph (A). 10 (C) ACCESS TO INVESTIGATIVE FILE OF 11 THE SECRETARY OF LABOR.— 12 (i) IN GENERAL.—A protected indi- 13 vidual alleging a reprisal under this section 14 shall have access to the investigation file of 15 the Secretary of Labor in accordance with 16 section 552a of title 5, United States Code 17 (commonly referred to as the ‘‘Privacy 18 Act’’). The investigation of the Secretary 19 of Labor shall be deemed closed for pur- 20 poses of disclosure under such section 21 when an individual files an appeal to an 22 agency head or a court of competent juris- 23 diction. 24 VerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268 pamtmann on DSKBC07HB2PROD with BILLS 13 •S 268 IS (ii) CIVIL ACTION.—In the event a 1 protected individual alleging a reprisal 2 under this section brings a civil action 3 under this subsection, the protected indi- 4 vidual and the non-Federal employer (or 5 the head of the applicable agency in the 6 case of a Federal personal services con- 7 tract involving covered funds), if applica- 8 ble, shall have access to the investigative 9 file of the Secre [Text truncated for display. Full text available on Congress.gov.]