November 6, 2014

Protecting Public Health Service Whistleblowers — Another Lesson from the Ebola Scare

By the C|C Whistleblower Lawyer Team

There have been many invaluable take-aways from the Ebola horror that has struck so much pain and fear around the globe. But one little talked about lesson is the need to better protect those scientists on the front lines of trying to contain this deadly scourge, and who unfortunately may be battling similar outbreaks in the future. We are talking about the members of the Public Health Service (PHS), the corps of government doctors and healthcare workers tasked with keeping these kinds of contagions at bay. Due to a peculiarity in the law, these federal employees have been carved out of the greatly expanded whistleblower protections afforded government workers. It is a lapse which if not remedied may have dire consequences down the road.

That was the strongly worded admonition issued last week by the Union of Concerned Scientists in an opinion piece by Celia Wexler, a senior representative for the group’s Scientific Integrity Initiative. As she explained, the PHS — which includes more than 6,500 scientists working at more than 20 federal agencies (including the CDC, FDA and EPA) — falls under the jurisdiction of the military whistleblower protection system. This is a relatively recent development that was apparently prompted out of concern that if PHS employees had civilian whistleblower protections they might lose out on some of the military benefits to which they are otherwise entitled. According to Wexler, this is an unfounded concern as “PHS members had civilian whistleblower rights for 30 years without any erosion of their military status or benefits.”

The problem with the current arrangement is that military whistleblowers are not entitled to the same protections as other federal whistleblowers. They are likely to get better with Congress’ passage late last year of amendments to the Military Whistleblower Protection Act. But even if and when these advances kick in for military whistleblowers, they still fall far short of the much broader whistleblower rights and protections afforded everyone else. As Wexler so pointedly put it:

Scientists, physicians and nurses in the Public Health Service still lack the ability to take their complaints about being harassed if they expose waste, fraud and abuse to court if they are not satisfied by the administrative process. Their “day in court” through administrative hearings is conducted by the military institutions that normally would be defendants, rather than an independent forum. And the legal standards to prove harassment and retaliation are stacked against them based on rules dating back to the 1970s that have been updated in every whistleblower law enacted since 1989.

What this means for the dozens of PHS medical staffers risking their lives in Africa fighting this lethal disease — and the scores more engaged back home trying solve this deadly crisis — they are going to be extremely hesitant to step forward with concerns or complaints about the US Ebola effort. Not the ideal climate in which we want these critical healthcare workers to exist. “Our PHS workers are first-class scientists and healthcare providers. They should not be consigned to second-class protections.” Kudos to Ms. Wexler for so forcefully shining a light on this serious lapse in our whistleblower system.

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