On July 29, 2010, The Illinois Nursing Home Care Act was amended to include strong whistleblower protections to nursing home employees (including nursing home administrators) who engage in protected activity by doing any of the following:
1. Discloses or threatens to disclose to a supervisor or to a public body (like the Illinois Department of Public Health) an activity, inaction, policy, or practice implemented by a facility that the employee reasonably believes is in violation of a law, rule, or regulation; or
2. Provides information to or testifies before any public body (like the Illinois Department of Public Health) conducting an investigation, hearing, or inquiry into any violation of a law, rule, or regulation by a nursing home administrator; or
3. Assists or participates in a proceeding to enforce the provisions of this Act.
Under 210 ILCS 45/3-810(b)(1) of the Nursing Home Care Act Whistleblower Protections, a facility cannot retaliate against any employees for reporting any violations of any Illinois or federal law, rule, or regulation to either their supervisors (such as an administrator, DON, ADON, etc.) or the Illinois Department of Public Health. Therefore, nursing home employees are free to report what they reasonably and honestly believe to abuse or neglect of residents directly to their supervisors or the Illinois Department of Public Health without fear of retaliation. Nursing home employees are free to cooperate with the Illinois Department of Public Health investigations into abuse and neglect of nursing home residents without fear of retaliation.
Under 210 ILCS 45/3-810(a) of the Nursing Home Care Act Whistleblower Protections, “retaliatory action” is defined to mean the reprimand, discharge, suspension, demotion, denial of promotion, or transfer, or change in the terms and conditions of employment of the employee of a facility that is taken in retaliation for any of the three forms of protected activity identified above.
An employee establishes a violation of the Nursing Home Care Act Whistleblower Protections by proving the following: (1) That he/she engaged in one of the three forms of protected activity described above; and (2) that the protected activity was a contributing factor in the retaliatory action alleged by the employee (i.e., suspension, discipline, termination, etc.). The facility may have a defense to the WhistleBlower Protections, if the facility proves by clear and convincing evidence that it would have taken the same unfavorable personnel action in the absence of the protected activity.
Upon proof of a violation of the Nursing Home Care Act Whistleblower Protections an employee of a facility may be awarded all remedies necessary to make the employee whole and to prevent future violations of this Section such as compensatory and punitive damages. Remedies imposed by the court may include, but are not limited to, all of the following:
1. Reinstatement of the employee to either the same position held before the retaliatory action or to an equivalent position.
2. Two times the amount of the back pay.
3. Interest on back pay.
4. Reinstatement of full fringe benefits and seniority rights.
5. Payment of reasonable costs and attorney’s fees.
In addition to the rights provided under the Nursing Home Care Act Whistleblower Protections, employees are free to seek additional remedies available under the Illinois Whistleblower Act and Illinois common law retaliatory discharge.
If you would like to learn more about your rights under the Illinois Nursing Home Care Act Whistleblower Protections or your rights under the Illinois Whistleblower Act or Illinois common law retaliatory discharge, call Brian J. Graber, Ltd., at (312) 291-4648 for a free confidential consultation.