Developing Regulations Requiring COVID-19 Vaccination May Support Whistleblower Claims

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New Hampshire whistleblower law prohibits termination of employees who report, either at work, or to the media or a government agency, their employers’ violations of federal regulations. In the era of Covid-19, federal regulations are on the horizon that will require certain employers to, in turn, require their employees to be vaccinated as a condition of employment. For example, the Centers for Medicare & Medicaid Services (CMS) and the Centers for Disease Control and Prevention (CDC) are together developing an emergency regulation requiring employees of all nursing homes (that accept Medicare and Medicaid funds) to be vaccinated against Covid-19. In the event that a medicare/medicaid receiving facility does not actually require its employees to be vaccinated, and an employee reports this as a violation of law that threatens a vulnerable population at greater risk of infection, New Hampshire RSA 275-E:2 prohibits the employer from “harass[ing], abus[ing], intimidat[ing], discharg[ing], threaten[ing], or otherwise discriminat[ing] against” the reporting employee. If the employer nevertheless engages in the prohibited retaliatory conduct, the employee may sue the employer for damages including for lost pay and benefits. If the employee prevails, he or she may also recover his or her attorney’s fees.

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