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Protection for Nursing Home Employees and Whistleblowers who Stand Up for the Elderly

Effective July 29, 2010, the Illinois General Assembly amended the Nursing Home Care Act to include what it termed “whistleblower protection”. 210 ILCS 45/3-810 (West 2010). Section 3-810 specifically provides a private right of action for nursing home employees who are retaliated against for reporting or threatening to report to a supervisor or a public body any action or incidents they believe to be a violation of the law, a rule, or a regulation regarding care and treatment of nursing home residents. Prior to this amendment, Illinois Courts did not recognize a private right of action for nursing home employees who reported violations and were retaliated against. In Young v. Alden Gardens of Waterford, Bethany Young, RN filed suit alleging, in part, that she was retaliated against for refusing to falsify medical records on November 9, 2009. The trial court dismissed her claim under Section 3-810 based on the fact that the Nursing Home Care Act did not provide a private right of action for retaliatory discharge at the time the conduct occurred. The court noted that because the amendment affected a substantive change in the law, it could not be applied retroactively to Young’s claim. Young v. Alden Gardens of Waterford, LLC, 2015 IL App (1st) 131887 ¶ 11.

In 2010, Nursing Home employees gained significant protection against retaliation for reporting or even threatening to report conduct of the Nursing Home. Under this Amendment, employees are also protected from retaliation for providing information or otherwise participating in any investigation by a public body, like the Illinois Department of Public Health. 210 ILCS 45/3-810(b)(1)-(3). “Retaliatory action” is defined broadly under the act as: any reprimand, discharge, suspension, demotion, denial of promotion or transfer or change in the terms and conditions of employment of any employee taken as a result of an employees participation in the above referenced protected activities. 210 ILCS 45/3-810(a).

This amendment furthers the general purpose of the Nursing Home Care Act first enacted in 1979 to protect residents due to concerns stemming from reports of abuse and neglect. By offering employees protection in conjunction with their duty to report violations, the Act’s purpose and goals align as now employees are encouraged to report violations without fear of losing their jobs or being black listed by their employer.