The decision to go to authorities with complaints about an employer’s wrongful or illegal behavior is never an easy one. Whistleblower statutes attempt to reduce the hazards involved with coming forward by shielding employees who come forward with good faith concerns about potentially wrongful behavior from retaliation by their accused employers. Nevada and federal law both provide a range of protections for public employees who come forward as whistleblowers.
Nevada’s public employee whistleblower law can be found at NRS 281.611
through 671. Broadly, the statute is designed to protect state and local government employees from retaliation for reporting “improper governmental action.” This term casts a broad net, capturing actions by state or local officers and employees taken in the performance of official duties that is:
- In violation of a state law or regulation.
- In the case of local agencies, in violation of a local ordinance.
- Abuses authority.
- Presents a substantial and specific danger to the public health or safety.
- Is a gross waste of public money.
The law protects a broad range of individuals who work for the state or a local government agency, including elected officials, political appointees, and individuals who perform public duties for compensation. State and local officers and employees are may not use their official authority to threaten, coerce, command, or otherwise influence a person who wishes to disclose improper government action. This includes taking adverse employment actions against the whistleblower, which includes everything from outright termination to unwarranted negative employment reviews. To be actionable under the statute the retaliation must have taken place within two years of the disclosure of information. A claim of wrongful reprisal for whistleblowing can be made by submitting a form
to the Department of Administration Human Resource Management division.
In addition to Nevada’s general whistleblowing statute protecting public employees, other state and federal laws may be germane to specific cases:
- Section 250 of the Nevada False Claims Act protects employees and contractors who report fraud in government contracts.
- State common law recognizes that an employer’s retaliation against a whistleblowing employee violates public policy that favors disclosure of wrongdoing. “Public policy” is a specific legal concept that draws upon principles set forth in statutes and elsewhere. For public employees, one source of public policy rationales for whistleblowing is Nevada’s Ethics in Government
- The federal Occupational Safety and Health Administration (OSHA) enforces whistleblowing protections under a wide range of federal laws.
A public employee who is thinking about reporting bad behavior by an employer should consider consulting with an attorney before
taking actions that could result in retaliation. Ideally a whistleblower gets ahead of potentially illegal reactions by an employer. At Greenman Goldberg Raby Martinez we provide personal, caring counsel to each client. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page
Some employers, especially in the health care industry, have started requiring their employees to get annual flu shots. Even though the flu vaccine has a lot of benefits both for the patient and the population at large, some people can experience serious side effects
. These range from fever and nausea to allergic reactions and, in rare cases, serious conditions like Guillain-Barré syndrome
. An employer mandate can feel unfair for employees who are concerned about the risks of vaccines or object to them on religious grounds. But if an employer terminates an employee for refusing to comply with a mandatory vaccine policy, does the employee have legal recourse?
At-will employment gives employers leeway
Nevada is an at-will employment state, which means that an employer ordinarily can terminate an employee with or without cause. There are exceptions to this general rule for employees who work under a contract, such as collective bargaining agreements, where the terms of the contract will override the default, at-will rule. But absent an arrangement that spells out when and how an employee can be fired, an employer is free to terminate an employee at any time.
Failure to comply with a condition of employment, such as a requirement that all employees get the flu vaccine, may give an employer cause for firing an employee. For the employee, being fired for cause could have consequences beyond just losing the job, such as affecting eligibility for retirement benefits. As a consequence, an employee who objects to a mandatory vaccine may be placed in a difficult position.
Responses to a mandatory flu vaccine
Employees who object to their employers’ mandatory vaccine policies have started taking the issue to the courts, either directly or with the help of the U.S. Equal Employment Opportunity Commission (EEOC). These cases have raised several potentially strong legal arguments in favor of employee choice:
- Disability. An employee who can show that a vaccine may have negative side effects related to an existing disability may have a good argument that the employer must grant a reasonable accommodation under the Americans with Disabilities Act (ADA).
- Pregnancy. A pregnant employee may be able to refuse a vaccine on grounds that other employees have been granted exceptions for other medical reasons. The federal Pregnancy Discrimination Act prohibits unequal treatment of pregnant employees on the basis of their pregnancy. Pregnant employees may also qualify for disabilities under the ADA in some circumstances, such as if they are suffering from gestational diabetes.
- Religious convictions. An employee with sincerely-held religious beliefs that prohibit the use of vaccines may be entitled to reasonable accommodations under Title VII of the Civil Rights Act of 1964, so long as the accommodation does not present an undue hardship to the employer. Note that Title VII does not apply to purely secular objections, such as those based on particular scientific studies or non-religious personal convictions. See Fallon v. Mercy Catholic Med. Ctr., 977 F.3d 487 (3rd Cir. 2017).
- Privacy. Under the federal Health Insurance Portability and Accountability Act (HIPAA) most types of health care provider are required to keep confidential the health records of their patients. Employers are only entitled to such information in limited circumstances. In many situations, the administration of a flu vaccine in the workplace, such as by a third-party contractor, will fall outside HIPAA, but under the right circumstances a health care provider advising an employer that an employee refused a vaccine could violate the employee’s HIPAA rights.
GGRM serves the Las Vegas community
For over 45 years the attorneys at Greenman Goldberg Raby Martinez have helped clients in the Las Vegas area protect their legal rights and recover compensation for injuries they have suffered. If you have lost your job for refusing to comply with a mandatory vaccination policy and would like to understand your legal options, call us today for a free attorney consultation at 702-388-4476, or request a call through our website