H.R. 846, COVID–19 Whistleblower Protection Act
Summary
H.R. 846, the COVID–19 Whistleblower Protection Act, introduced in the House of Representatives on February 4, 2021 by Ms. Speier and referred to the Committee on Education and Labor. The bill's stated purpose is to protect certain whistleblowers seeking to ensure accountability and oversight of the Nation's COVID–19 pandemic response. Its definitions cover terms such as abuse of authority, the CARES Act (Public Law 116–136) and covered funds. A section titled Protecting Whistleblowers addresses reprisals against protected individuals, an investigation by the Secretary of Labor, and a civil action.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
- Issuer
- Congressional materials
- Document type
- Bills Bills 117Hr846Ih Bills 117Hr846Ih
- Case
- Bills Bills 117Hr846Ih Bills 117Hr846Ih
Cite this document
“H.R. 846, COVID–19 Whistleblower Protection Act.”
Original at www.govinfo.gov. Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/bills-bills-117hr846ih-bills-117hr846ih/
, SHA-256 4ee18d37790cabaa6b07efa56750eda8c5ff74c5c80f9b31de45aaf17e0140a2.Full text
I
117TH CONGRESS
1ST SESSION
H. R. 846
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 HOUSE OF REPRESENTATIVES
FEBRUARY 4, 2021
Ms. SPEIER (for herself, Mr. RASKIN, Mr. CARSON, Mr. COHEN, Mr. DANNY
K. DAVIS of Illinois, Mrs. DEMINGS, Mr. DESAULNIER, Mr. GRIJALVA,
Mr. HASTINGS, Mrs. HAYES, Ms. JACKSON LEE, Ms. JAYAPAL, Mr.
JONES, Mrs. KIRKPATRICK, Mr. LYNCH, Mrs. CAROLYN B. MALONEY of
New York, Ms. NORTON, Mr. PHILLIPS, Miss RICE of New York, Ms.
TLAIB, Mrs. BEATTY, and Mr. THOMPSON of Mississippi) introduced the
following bill; which was referred to the Committee on Education and
Labor
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.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 SECTION 1. SHORT TITLE.
4 This Act may be cited as the ‘‘COVID–19 Whistle-
pamtmann on DSKBC07HB2PROD with BILLS
5 blower Protection Act’’.
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
2
1 SEC. 2. DEFINITIONS.
2 In this Act—
3 (1) the term ‘‘abuse of authority’’ means an ar-
4 bitrary and capricious exercise of authority by a con-
5 tracting officer or employee that adversely affects
6 the rights of any individual, or that results in per-
7 sonal gain or advantage to the officer or employee
8 or to preferred other individuals;
9 (2) the term ‘‘CARES Act’’ means the CARES
10 Act (Public Law 116–136);
11 (3) the term ‘‘Coronavirus pandemic-related
12 program, project, or activity’’—
13 (A) means a program, project, or activity
14 of the executive branch of the Federal Govern-
15 ment authorized under or carried out using
16 amounts made available under an Act to re-
17 spond to or to provide aid or assistance to ad-
18 dress, relief from, or funding to address the
19 outbreak of COVID–19 that is enacted before,
20 on, or after the date of enactment of this Act;
21 and
22 (B) includes any program, project, or ac-
23 tivity of the executive branch of the Federal
24 Government authorized under or carried out
pamtmann on DSKBC07HB2PROD with BILLS
25 using amounts made available under—
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
3
1 (i) the Paycheck Protection Program
2 and Health Care Enhancement Act (Public
3 Law 116–139), or an amendment made by
4 that Act;
5 (ii) the CARES Act, or an amend-
6 ment made by that Act;
7 (iii) the Families First Coronavirus
8 Response Act (Public Law 116–127), or an
9 amendment made by that Act;
10 (iv) the Coronavirus Preparedness and
11 Response Supplemental Appropriations
12 Act, 2020 (Public Law 116–123), or an
13 amendment made by that Act; or
14 (v) division M or N of the Consoli-
15 dated Appropriations Act, 2021(Public
16 Law 116–260), or an amendment made by
17 that division;
18 (4) the term ‘‘covered funds’’ means any con-
19 tract, subcontract, grant, subgrant, loan, loan guar-
20 antee, or other payment for which—
21 (A) the Federal Government provides any
22 portion of the funds or property that is pro-
23 vided, requested, or demanded; and
pamtmann on DSKBC07HB2PROD with BILLS
24 (B) any portion of the funds are appro-
25 priated or otherwise made available under or to
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
4
1 carry out a Coronavirus pandemic-related pro-
2 gram, project, or activity;
3 (5) the term ‘‘employee’’—
4 (A) except as provided under subparagraph
5 (B), means an individual performing services on
6 behalf of an employer, including any individual
7 working for an employer under a contract with
8 such employer (including a contractor, subcon-
9 tractor, or agent of an employer); and
10 (B) does not include any Federal employee
11 or member of the uniformed services (as that
12 term is defined in section 101(a)(5) of title 10,
13 United States Code);
14 (6) the term ‘‘non-Federal employer’’—
15 (A) means any employer—
16 (i) with respect to covered funds—
17 (I) the contractor, subcontractor,
18 grantee, subgrantee, or recipient, as
19 the case may be, if the contractor,
20 subcontractor, grantee, subgrantee, or
21 recipient is an employer; and
22 (II) any professional membership
23 organization, certification or other
pamtmann on DSKBC07HB2PROD with BILLS
24 professional body, any agent or li-
25 censee of the Federal Government, or
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
5
1 any person acting directly or indi-
2 rectly in the interest of an employer
3 receiving covered funds; or
4 (ii) with respect to covered funds re-
5 ceived by a State or local government, the
6 State or local government receiving the
7 funds and any contractor or subcontractor
8 of the State or local government; and
9 (B) does not mean any department, agen-
10 cy, or other entity of the Federal Government;
11 (7) the term ‘‘protected individual’’ means—
12 (A) an employee of, former employee of, or
13 individual seeking employment with, any non-
14 Federal employer receiving covered funds; or
15 (B) a Federal personal services contractor
16 receiving covered funds, former such Federal
17 personal services contractor, or applicant for a
18 Federal personal services contract involving
19 such funds;
20 (8) the term ‘‘reprisal’’ means an action (or, as
21 applicable, inaction) that is discharging, demoting,
22 blacklisting, or acting or failing to take an action in
23 a manner prejudicial against, or otherwise discrimi-
pamtmann on DSKBC07HB2PROD with BILLS
24 nating against in any way (including in the hiring
25 process and including by the threat of any such ac-
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
6
1 tion or inaction) a protected individual as described
2 in section 3(a)(1) for a reason described in subpara-
3 graph (A) or (B) of such section; and
4 (9) the term ‘‘State or local government’’
5 means—
6 (A) the government of each of the several
7 States, the District of Columbia, the Common-
8 wealth of Puerto Rico, Guam, American Samoa,
9 the Virgin Islands, the Commonwealth of the
10 Northern Mariana Islands, or any other terri-
11 tory or possession of the United States; or
12 (B) the government of any political sub-
13 division of a government listed in subparagraph
14 (A).
15 SEC. 3. PROTECTING WHISTLEBLOWERS.
16 (a) PROHIBITION OF REPRISALS.—
17 (1) IN GENERAL.—A protected individual may
18 not be discharged, demoted, blacklisted, prejudiced
19 by any action or lack of action, or otherwise dis-
20 criminated against in any way (including in the hir-
21 ing process and including by the threat of any such
22 action or inaction) for—
23 (A) disclosing, being perceived as dis-
pamtmann on DSKBC07HB2PROD with BILLS
24 closing, or preparing to disclose (including as-
25 sisting in disclosing, being perceived as assist-
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
7
1 ing in disclosing, or preparing to assist in dis-
2 closing and including a disclosure made in the
3 ordinary course of the duties of the protected
4 individual) to an officer or entity described in
5 paragraph (2) information that the protected
6 individual reasonably believes is evidence of
7 misconduct that violates, obstructs, or under-
8 mines any statute, rule, or regulation with re-
9 spect to any Coronavirus pandemic-related pro-
10 gram, project, or activity, including—
11 (i) gross mismanagement of an agency
12 contract, subcontract, grant, or subgrant
13 relating to covered funds;
14 (ii) a gross waste of covered funds;
15 (iii) a substantial and specific danger
16 to public health or safety;
17 (iv) an abuse of authority related to
18 the distribution, implementation, or use of
19 covered funds, including conflict of interest
20 or partiality; and
21 (v) a violation of any statute, rule, or
22 regulation related to an agency contract,
23 subcontract (including the competition for
pamtmann on DSKBC07HB2PROD with BILLS
24 or negotiation of a contract or sub-
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
8
1 contract), grant, or subgrant, awarded or
2 issued relating to covered funds; or
3 (B) refusing to obey an order that the pro-
4 tected individual reasonably believes would re-
5 quire that individual to violate a statute, rule,
6 or regulation with respect to any Coronavirus
7 pandemic-related program, project, or activity.
8 (2) OFFICERS AND ENTITIES.—The officers and
9 entities described in this paragraph are—
10 (A) the Pandemic Response Accountability
11 Committee;
12 (B) an inspector general, including the
13 Special Inspector General for Pandemic Relief;
14 (C) the Congressional Oversight Commis-
15 sion;
16 (D) the Comptroller General of the United
17 States;
18 (E) a Member of Congress;
19 (F) a congressional committee;
20 (G) a State or Federal regulatory or law
21 enforcement agency;
22 (H)(i) an individual with supervisory au-
23 thority over a protected individual; or
pamtmann on DSKBC07HB2PROD with BILLS
24 (ii) another individual who—
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
9
1 (I) has authority to investigate, dis-
2 cover, or terminate misconduct; and
3 (II) works for the non-Federal em-
4 ployer (in the case of a protected individual
5 described in section 2(7)(A)), or the Fed-
6 eral Government (in the case of a pro-
7 tected individual described in section
8 2(7)(B));
9 (I) a court or grand jury;
10 (J) an officer or representative of a labor
11 organization; or
12 (K) the head of a Federal agency or a des-
13 ignee of such a head.
14 (3) APPLICATION.—
15 (A) IN GENERAL.—For the purposes of
16 paragraph (1)—
17 (i) a protected individual who initiates
18 or provides evidence of misconduct by a
19 contractor, subcontractor, grantee, or sub-
20 grantee in any judicial or administrative
21 proceeding relating to waste, fraud, or
22 abuse in connection with a Federal con-
23 tract or grant shall be deemed to have
pamtmann on DSKBC07HB2PROD with BILLS
24 made a disclosure covered by such para-
25 graph; and
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
10
1 (ii) any discharge, demotion, discrimi-
2 nation, or other reprisal described in para-
3 graph (1) is prohibited even if it is under-
4 taken at the request of an executive branch
5 officer or employee, unless the request
6 takes the form of a non-discretionary di-
7 rective and is within the authority of the
8 executive branch official making the re-
9 quest.
10 (B) PROTECTION OF WHISTLEBLOWER
11 IDENTITY.—
12 (i) IN GENERAL.—Except as required
13 by law, an officer or entity described in
14 paragraph (2) that receives information
15 under paragraph (1) and any individual or
16 entity to which the officer or entity dis-
17 closes the information may not disclose the
18 identity or identifying information of the
19 protected individual providing the informa-
20 tion without explicit written consent of the
21 protected individual.
22 (ii) NOTICE.—If disclosure of the
23 identity or identifying information of a
pamtmann on DSKBC07HB2PROD with BILLS
24 protected individual providing information
25 under paragraph (1) is required by law,
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
11
1 the recipient shall provide timely notice of
2 the disclosure to the protected individual.
3 (b) INVESTIGATION OF COMPLAINTS.—
4 (1) COMPLAINTS.—
5 (A) IN GENERAL.—A protected individual
6 who believes that the individual has been sub-
7 jected to a reprisal prohibited under subsection
8 (a) may, within 3 years after learning of the al-
9 leged reprisal, submit a complaint regarding the
10 reprisal to the Secretary of Labor in accordance
11 with paragraph (2).
12 (B) RESPONSE.—Not later than 60 days
13 after the submission of a complaint under sub-
14 paragraph (A), the applicable non-Federal em-
15 ployer (or the applicable agency head in the
16 case of a Federal personal services contract in-
17 volving covered funds) shall submit an answer
18 to the complaint to the Secretary of Labor.
19 (2) REMEDY AND ENFORCEMENT AUTHOR-
20 ITY.—
21 (A) RULES AND PROCEDURES.—Except to
22 the extent provided otherwise in this section,
23 any action alleging a reprisal prohibited under
pamtmann on DSKBC07HB2PROD with BILLS
24 subsection (a) shall be governed, to the max-
25 imum extent practicable, by the rules and pro-
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
12
1 cedures for administrative and judicial enforce-
2 ment, including for investigations, civil actions,
3 appeals, and relief, set forth under section
4 7623(d) of the Internal Revenue Code of 1986.
5 (B) BURDEN OF PROOF.—The Secretary
6 of Labor, or the officer presiding in a judicial
7 or administrative proceeding, shall apply the
8 legal burdens of proof specified in section
9 1221(e) of title 5, United States Code, in deter-
10 mining whether a reprisal prohibited under sub-
11 section (a) has occurred in accordance with the
12 rules and procedures under subparagraph (A).
13 (C) ACCESS TO INVESTIGATIVE FILE OF
14 THE SECRETARY OF LABOR.—
15 (i) IN GENERAL.—A protected indi-
16 vidual alleging a reprisal under this section
17 shall have access to the investigation file of
18 the Secretary of Labor in accordance with
19 section 552a of title 5, United States Code
20 (commonly referred to as the ‘‘Privacy
21 Act’’). The investigation of the Secretary
22 of Labor shall be deemed closed for pur-
23 poses of disclosure under such section
pamtmann on DSKBC07HB2PROD with BILLS
24 when an individual files an appeal to an
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
13
1 agency head or a court of competent juris-
2 diction.
3 (ii) CIVIL ACTION.—In the event a
4 protected individual alleging a reprisal
5 under this section brings a civil action
6 under this subsection, the protected indi-
7 vidual and the non-Federal employer (or
8 the head of the applicable agency in the
9 case of a Federal personal services con-
10 tract involving covered funds), if applica-
11 ble, shall have access to the investigative
12 file of the Secretary of Labor in accord-
13 ance with section 552a of title 5, United
14 States Code.
15 (iii) EXCEPTION.—The Secretary of
16 Labor may exclude from disclosure—
17 (I) information protected from
18 disclosure by a provision of law; and
19 (II) any additional information
20 the Secretary of Labor determines
21 disclosure of which would impede a
22 continuing investigation, if such infor-
23 mation is disclosed once such disclo-
pamtmann on DSKBC07HB2PROD with BILLS
24 sure would no longer impede such in-
25 vestigation, unless the Secretary of
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
14
1 Labor determines that disclosure of
2 law enforcement techniques, proce-
3 dures, or information could reasonably
4 be expected to risk circumvention of
5 the law or disclose the identity of a
6 confidential source.
7 (iv) PRIVACY OF INFORMATION.—The
8 Secretary of Labor investigating an alleged
9 reprisal under this section may not re-
10 spond to any inquiry or disclose any infor-
11 mation from or about any protected indi-
12 vidual alleging such reprisal, except in ac-
13 cordance with the provisions of section
14 552a of title 5, United States Code, or as
15 required by any other applicable Federal
16 law.
17 (c) GENERAL PROVISIONS.—
18 (1) RIGHTS RETAINED BY EMPLOYEE.—Noth-
19 ing in this section shall diminish the rights, privi-
20 leges, or remedies of any protected individual under
21 any Federal or State law, or under any collective
22 bargaining agreement.
23 (2) LIABILITY.—Notwithstanding any other
pamtmann on DSKBC07HB2PROD with BILLS
24 provision of law, a protected individual shall be im-
25 mune from civil and criminal liability with respect to
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
15
1 a disclosure by the individual if the individual would
2 be protected from reprisal under subsection (a) for
3 making the disclosure. The protected individual shall
4 bear the burden of proving that the individual would
5 be protected from reprisal under subsection (a) for
6 making the disclosure.
7 (3) NONENFORCEABILITY OF CERTAIN PROVI-
8 SIONS WAIVING RIGHTS AND REMEDIES OR REQUIR-
9 ING ARBITRATION OF DISPUTES.—
10 (A) WAIVER OF RIGHTS AND REMEDIES.—
11 Except as provided under subparagraph (C),
12 the rights and remedies provided for in this sec-
13 tion may not be waived by any public or private
14 agreement, policy, form, or condition of employ-
15 ment, including by any predispute arbitration
16 agreement.
17 (B) PREDISPUTE ARBITRATION AGREE-
18 MENTS.—Except as provided under subpara-
19 graph (C), no predispute arbitration agreement
20 shall be valid or enforceable if it requires arbi-
21 tration of a dispute arising under this section.
22 (C) EXCEPTION FOR COLLECTIVE BAR-
23 GAINING AGREEMENTS.—Notwithstanding sub-
pamtmann on DSKBC07HB2PROD with BILLS
24 paragraphs (A) and (B), an arbitration provi-
25 sion in a collective bargaining agreement shall
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
16
1 be enforceable as to disputes arising under the
2 collective bargaining agreement.
3 (4) REQUIREMENT TO POST NOTICE OF RIGHTS
4 AND REMEDIES.—Any non-Federal employer receiv-
5 ing covered funds (and the head of the applicable
6 agency in the case of a Federal personal services
7 contract involving covered funds) shall post notice of
8 the rights and remedies provided under this section.
9 (d) RULES OF CONSTRUCTION.—
10 (1) NO IMPLIED AUTHORITY TO RETALIATE
11 FOR NON-PROTECTED DISCLOSURES.—Nothing in
12 this section may be construed to—
13 (A) authorize the discharge of, demotion
14 of, or discrimination or other reprisal against a
15 protected individual for a disclosure other than
16 a disclosure protected by subsection (a); or
17 (B) modify or derogate from a right or
18 remedy otherwise available to the protected in-
19 dividual.
20 (2) RELATIONSHIP TO STATE LAWS.—Nothing
21 in this section may be construed to preempt, pre-
22 clude, or limit the protections provided for public or
23 private employees under State whistleblower laws.
pamtmann on DSKBC07HB2PROD with BILLS
24 (e) COMPLAINT PORTAL.—The Special Inspector
25 General for Pandemic Relief, the Pandemic Relief Ac-
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\H846.IH H846
17
1 countability Committee, and the Congressional Oversight
2 Commission shall each establish a public website where
3 any individual who believes that the individual has been
4 subjected to a reprisal prohibited under subsection (a)
5 may submit a complaint regarding the reprisal. Such com-
6 plaints shall be transmitted to the Secretary of Labor for
7 enforcement in accordance with this section.
8 (f) AUTHORIZATION OF APPROPRIATIONS.—There is
9 authorized to be appropriated to the Secretary of Labor
10 to carry out this Act $20,000,000 for fiscal year 2021,
11 to remain available until expended.
Æ
pamtmann on DSKBC07HB2PROD with BILLS
•HR 846 IH
VerDate Sep 11 2014 17:46 Feb 24, 2021 Jkt 019200 PO 00000 Frm 00017 Fmt 6652 Sfmt 6301 E:\BILLS\H846.IH H846
File and source
- File
- BILLS_bills-117hr846ih_bills-117hr846ih.pdf
- Size
- 254,382 bytes
- SHA-256
- 4ee18d37790cabaa6b07efa56750eda8c5ff74c5c80f9b31de45aaf17e0140a2
- Original
- www.govinfo.gov