[115th Congress Public Law 73]
[From the U.S. Government Publishing Office]
[[Page 131 STAT. 1235]]
Public Law 115-73
115th Congress
An Act
To provide greater whistleblower protections for Federal employees,
increased awareness of Federal whistleblower protections, and increased
accountability and required discipline for Federal supervisors who
retaliate against whistleblowers, and for other purposes. <<NOTE: Oct.
26, 2017 - [S. 585]>>
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, <<NOTE: Dr. Chris
Kirkpatrick Whistleblower Protection Act of 2017.>>
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) <<NOTE: 5 USC 101 note.>> Short Title.--This Act may be cited
as the ``Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--EMPLOYEES GENERALLY
Sec. 101. Definitions.
Sec. 102. Stays; probationary employees.
Sec. 103. Prohibited personnel practices.
Sec. 104. Discipline of supervisors based on retaliation against
whistleblowers.
Sec. 105. Suicide by employees.
Sec. 106. Training for supervisors.
Sec. 107. Information on whistleblower protections.
TITLE II--DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES
Sec. 201. Prevention of unauthorized access to medical records of
employees of the Department of Veterans Affairs.
Sec. 202. Outreach on availability of mental health services available
to employees of the Department of Veterans Affairs.
Sec. 203. Protocols to address threats against employees of the
Department of Veterans Affairs.
Sec. 204. Comptroller General of the United States study on
accountability of chiefs of police of Department of Veterans
Affairs medical centers.
TITLE I--EMPLOYEES GENERALLY
SEC. 101. <<NOTE: 5 USC 1212 note.>> DEFINITIONS.
In this title--
(1) the term ``agency''--
(A) except as provided in subparagraph (B), means an
entity that is an agency, as defined under section 2302
of title 5, United States Code, without regard to
whether one or more portions of title 5 of the United
States Code are inapplicable to the entity; and
(B) does not include any entity that is an element
of the intelligence community, as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C.
3003(4));
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(2) the term ``employee'' means an employee (as defined in
section 2105 of title 5, United States Code) of an agency; and
(3) the term ``personnel action'' has the meaning given that
term under section 2302 of title 5, United States Code.
SEC. 102. STAYS; PROBATIONARY EMPLOYEES.
(a) Request by Special Counsel.--Section 1214(b)(1) of title 5,
United States Code, is amended by adding at the end the following:
``(E) If the Merit Systems Protection Board grants a stay under this
subsection, the head of the agency employing the employee shall give
priority to a request for a transfer submitted by the employee.''.
(b) Probationary Employees.--Section 1221 of title 5, United States
Code, is amended by adding at the end the following:
``(k) If the Merit Systems Protection Board grants a stay to an
employee in probationary status under subsection (c), the head of the
agency employing the employee shall give priority to a request for a
transfer submitted by the employee.''.
(c) <<NOTE: Reports.>> Study Regarding Retaliation Against
Probationary Employees.--The Comptroller General of the United States
shall submit to the Committee on Homeland Security and Governmental
Affairs of the Senate and the Committee on Oversight and Government
Reform of the House of Representatives a report discussing retaliation
against employees in probationary status.
SEC. 103. PROHIBITED PERSONNEL PRACTICES.
Section 2302(b) of title 5, United States Code, is amended--
(1) in paragraph (12), by striking ``or'' at the end;
(2) in paragraph (13), by striking the period at the end and
inserting ``; or''; and
(3) by inserting after paragraph (13) the following:
``(14) access the medical record of another employee or an
applicant for employment as a part of, or otherwise in
furtherance of, any conduct described in paragraphs (1) through
(13).''.
SEC. 104. DISCIPLINE OF SUPERVISORS BASED ON RETALIATION AGAINST
WHISTLEBLOWERS.
(a) In General.--Subchapter II of chapter 75 of title 5, United
States Code, is amended by adding at the end the following:
``Sec. 7515. <<NOTE: 5 USC 7515.>> Discipline of supervisors
based on retaliation against whistleblowers
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) except as provided in subparagraph (B), means
an entity that is an agency, as defined under section
2302, without regard to whether any other provision of
this chapter is applicable to the entity; and
``(B) does not include any entity that is an element
of the intelligence community, as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C.
3003(4));
``(2) the term `prohibited personnel action' means taking or
failing to take an action in violation of paragraph (8), (9), or
(14) of section 2302(b) against an employee of an agency; and
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``(3) the term `supervisor' means an employee who would be a
supervisor, as defined under section 7103(a), if the entity
employing the employee was an agency.
``(b) <<NOTE: Determinations.>> Proposed Disciplinary Actions.--
``(1) In general.--If the head of the agency employing a
supervisor, an administrative law judge, the Merit Systems
Protection Board, the Special Counsel, a judge of the United
States, or the Inspector General of the agency employing a
supervisor determines that the supervisor has committed a
prohibited personnel action, the head of the agency employing
the supervisor, in accordance with the procedures required under
paragraph (2)--
``(A) for the first prohibited personnel action
committed by a supervisor--
``(i) <<NOTE: Time period.>> shall propose
suspending the supervisor for a period of not less
than 3 days; and
``(ii) may, in addition to a suspension
described in clause (i), propose any other action,
including a reduction in grade or pay, that the
head of the agency determines appropriate; and
``(B) for the second prohibited personnel action
committed by a supervisor, shall propose removing the
supervisor.
``(2) Procedures.--
``(A) Notice.--A supervisor against whom an action
is proposed to be taken under paragraph (1) is entitled
to written notice--
``(i) stating the specific reasons for the
proposed action; and
``(ii) informing the supervisor of the right
of the supervisor to review the material which is
relied on to support the reasons for the proposed
action.
``(B) <<NOTE: Time period.>> Answer and evidence.--
``(i) In general.--A supervisor who is
notified under subparagraph (A) that the
supervisor is the subject of a proposed action
under paragraph (1) is entitled to 14 days
following such notification to answer and furnish
evidence in support of the answer.
``(ii) No evidence furnished; insufficient
evidence.--After the end of the 14-day period
described in clause (i), if a supervisor does not
furnish evidence as described in clause (i) or if
the head of the agency determines that such
evidence is not sufficient to reverse the proposed
action, the head of the agency shall carry out the
action.
``(C) Scope of procedures.--An action carried out
under this section--
``(i) except as provided in clause (ii), shall
be subject to the same requirements and procedures
(including regarding appeals) as an action under
section 7503, 7513, or 7543; and
``(ii) shall not be subject to--
``(I) paragraphs (1) and (2) of
section 7503(b);
``(II) paragraphs (1) and (2) of
subsection (b) and subsection (c) of
section 7513; or
``(III) paragraphs (1) and (2) of
subsection (b) and subsection (c) of
section 7543.
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``(3) Delegation.--
``(A) In general.--Except as provided in paragraph
(B), the head of an agency may delegate any authority or
responsibility under this subsection.
``(B) Nondelegability of determination regarding
prohibited personnel action.--If the head of an agency
is responsible for determining whether a supervisor has
committed a prohibited personnel action for purposes of
paragraph (1), the head of the agency may not delegate
that responsibility.''.
(b) Technical and Conforming Amendment.--The table of sections for
subchapter II of chapter 75 of title 5, United States Code, <<NOTE: 5
USC 7501 prec.>> is amended by adding at the end the following:
``7515. Discipline of supervisors based on retaliation against
whistleblowers.''.
SEC. 105. <<NOTE: 5 USC 1212 note.>> SUICIDE BY EMPLOYEES.
(a) Referral.--The head of an agency shall refer to the Special
Counsel, along with any information known to the agency regarding the
circumstances described in paragraphs (2) and (3), any instance in which
the head of the agency has information indicating--
(1) an employee of the agency committed suicide;
(2) prior to the death of the employee, the employee made
any disclosure of information which reasonably evidences--
(A) any violation of any law, rule, or regulation;
or
(B) gross mismanagement, a gross waste of funds, an
abuse of authority, or a substantial and specific danger
to public health or safety; and
(3) after a disclosure described in paragraph (2), a
personnel action was taken against the employee.
(b) Office of Special Counsel Review.--For any referral to the
Special Counsel under subsection (a), the Special Counsel shall--
(1) examine whether any personnel action was taken because
of any disclosure of information described in subsection (a)(2);
and
(2) take any action the Special Counsel determines
appropriate under subchapter II of chapter 12 of title 5, United
States Code.
SEC. 106. <<NOTE: Consultation. 5 USC 2301 note.>> TRAINING FOR
SUPERVISORS.
In consultation with the Special Counsel and the Inspector General
of the agency (or senior ethics official of the agency for an agency
without an Inspector General), the head of each agency shall provide
training regarding how to respond to complaints alleging a violation of
whistleblower protections (as defined in section 2307 of title 5, United
States Code, as added by section 107) available to employees of the
agency--
(1) to employees appointed to supervisory positions in the
agency who have not previously served as a supervisor; and
(2) on an annual basis, to all employees of the agency
serving in a supervisory position.
SEC. 107. INFORMATION ON WHISTLEBLOWER PROTECTIONS.
(a) Existing Provision.--
(1) In general.--Section 2302 of title 5, United States
Code, is amended--
(A) by striking subsection (c); and
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(B) by redesignating subsections (d), (e), and (f)
as subsections (c), (d), and (e), respectively.
(2) Technical and conforming amendments.--
(A) Section 4505a(b)(2) of title 5, United States
Code, is amended by striking ``section 2302(d)'' and
inserting ``section 2302(c)''.
(B) Section 5755(b)(2) of title 5, United States
Code, is amended by striking ``section 2302(d)'' and
inserting ``section 2302(c)''.
(C) Section 110(b)(2) of the Whistleblower
Protection Enhancement Act of 2012 (5 U.S.C. 2302 note)
is amended by striking ``section 2302(f)(1) or (2)'' and
inserting ``section 2302(e)(1) or (2)''.
(D) Section 1217(d)(3) of the Panama Canal Act of
1979 (22 U.S.C. 3657(d)(3)) is amended by striking
``section 2302(d)'' and inserting ``section 2302(c)''.
(E) Section 1233(b) of the Panama Canal Act of 1979
(22 U.S.C. 3673(b)) is amended by striking ``section
2302(d)'' and inserting ``section 2302(c)''.
(b) Provision of Information.--Chapter 23 of title 5, United States
Code, is amended by adding at the end the following:
``Sec. 2307. <<NOTE: 5 USC 2307.>> Information on whistleblower
protections
``(a) Definitions.--In this section--
``(1) the term `agency'--
``(A) except as provided in subparagraph (B), has
the meaning given that term in section 2302; and
``(B) does not include any entity that is an element
of the intelligence community, as defined in section
3(4) of the National Security Act of 1947 (50 U.S.C.
3003(4));
``(2) the term `new employee' means an individual--
``(A) appointed to a position as an employee of an
agency on or after the date of enactment of the Dr.
Chris Kirkpatrick Whistleblower Protection Act of 2017;
and
``(B) who has not previously served as an employee;
and
``(3) the term `whistleblower protections' means the
protections against and remedies for a prohibited personnel
practice described in paragraph (8), subparagraph (A)(i), (B),
(C), or (D) of paragraph (9), or paragraph (14) of section
2302(b).
``(b) <<NOTE: Consultation.>> Responsibilities of Head of Agency.--
The head of each agency shall be responsible for the prevention of
prohibited personnel practices, for the compliance with and enforcement
of applicable civil service laws, rules, and regulations, and other
aspects of personnel management, and for ensuring (in consultation with
the Special Counsel and the Inspector General of the agency) that
employees of the agency are informed of the rights and remedies
available to them under this chapter and chapter 12, including--
``(1) information regarding whistleblower protections
available to new employees during the probationary period;
``(2) the role of the Office of Special Counsel and the
Merit Systems Protection Board with regard to whistleblower
protections; and
``(3) how to make a lawful disclosure of information that is
specifically required by law or Executive order to be kept
classified in the interest of national defense or the conduct
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of foreign affairs to the Special Counsel, the Inspector General
of an agency, Congress, or other agency employee designated to
receive such disclosures.
``(c) <<NOTE: Deadline.>> Timing.--The head of each agency shall
ensure that the information required to be provided under subsection (b)
is provided to each new employee of the agency not later than 6 months
after the date the new employee begins performing service as an
employee.
``(d) Information Online.--The head of each agency shall make
available information regarding whistleblower protections applicable to
employees of the agency on the public website of the agency, and on any
online portal that is made available only to employees of the agency if
one exists.
``(e) Delegees.--Any employee to whom the head of an agency
delegates authority for personnel management, or for any aspect thereof,
shall, within the limits of the scope of the delegation, be responsible
for the activities described in subsection (b).''.
(c) Technical and Conforming Amendment.--The table of sections for
chapter 23 of title 5, United States Code, is amended by adding at the
end the following:
``2307. Information on whistleblower protections.''.
TITLE II--DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES
SEC. 201. PREVENTION OF UNAUTHORIZED ACCESS TO MEDICAL RECORDS OF
EMPLOYEES OF THE DEPARTMENT OF VETERANS
AFFAIRS.
(a) Development of Plan.--
(1) <<NOTE: Deadline.>> In general.--Not later than 180
days after the date of the enactment of this Act, the Secretary
of Veterans Affairs shall--
(A) develop a plan to prevent access to the medical
records of employees of the Department of Veterans
Affairs by employees of the Department who are not
authorized to access such records;
(B) submit to the appropriate committees of Congress
the plan developed under subparagraph (A); and
(C) <<NOTE: Briefing.>> upon request, provide a
briefing to the appropriate committees of Congress with
respect to the plan developed under subparagraph (A).
(2) Elements.--The plan required under paragraph (1) shall
include the following:
(A) <<NOTE: Assessment.>> A detailed assessment of
strategic goals of the Department for the prevention of
unauthorized access to the medical records of employees
of the Department.
(B) <<NOTE: Lists.>> A list of circumstances in
which an employee of the Department who is not a health
care provider or an assistant to a health care provider
would be authorized to access the medical records of
another employee of the Department.
(C) Steps that the Secretary will take to acquire
new or implement existing technology to prevent an
employee of the Department from accessing the medical
records of
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another employee of the Department without a specific
need to access such records.
(D) <<NOTE: Regulations.>> Steps the Secretary will
take, including plans to issue new regulations, as
necessary, to ensure that an employee of the Department
may not access the medical records of another employee
of the Department for the purpose of retrieving
demographic information if that demographic information
is available to the employee in another location or
through another format.
(E) A proposed timetable for the implementation of
such plan.
(F) <<NOTE: Estimate.>> An estimate of the costs
associated with implementing such plan.
(b) Appropriate Committees of Congress Defined.--In this section,
the term ``appropriate committees of Congress'' means--
(1) the Committee on Homeland Security and Governmental
Affairs and the Committee on Veterans' Affairs of the Senate;
and
(2) the Committee on Oversight and Government Reform and the
Committee on Veterans' Affairs of the House of Representatives.
SEC. 202. <<NOTE: 38 USC 703 note.>> OUTREACH ON AVAILABILITY OF
MENTAL HEALTH SERVICES AVAILABLE TO
EMPLOYEES OF THE DEPARTMENT OF VETERANS
AFFAIRS.
The Secretary of Veterans Affairs shall conduct a program of
outreach to employees of the Department of Veterans Affairs to inform
those employees of any mental health services, including telemedicine
options, that are available to them.
SEC. 203. <<NOTE: 38 USC 703 note.>> PROTOCOLS TO ADDRESS THREATS
AGAINST EMPLOYEES OF THE DEPARTMENT OF
VETERANS AFFAIRS.
The Secretary of Veterans Affairs shall ensure protocols are in
effect to address threats from individuals receiving health care from
the Department of Veterans Affairs directed towards employees of the
Department who are providing such health care.
SEC. 204. <<NOTE: Assessment.>> COMPTROLLER GENERAL OF THE UNITED
STATES STUDY ON ACCOUNTABILITY OF CHIEFS
OF POLICE OF DEPARTMENT OF VETERANS
AFFAIRS MEDICAL CENTERS.
The Comptroller General of the United States shall conduct a study
to assess the reporting, staffing, accountability, and chain
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of command structure of the Department of Veterans Affairs police
officers at medical centers of the Department.
Approved October 26, 2017.
LEGISLATIVE HISTORY--S. 585:
---------------------------------------------------------------------------
SENATE REPORTS: No. 115-44 (Comm. on Homeland Security and Governmental
Affairs).
CONGRESSIONAL RECORD, Vol. 163 (2017):
May 25, considered and passed Senate.
Oct. 12, considered and passed House.
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