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Public Law No: 115-73 (10/26/2017)

 
[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));

[[Page 131 STAT. 1236]]

            (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

[[Page 131 STAT. 1237]]

            ``(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.

[[Page 131 STAT. 1238]]

            ``(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

[[Page 131 STAT. 1239]]

                    (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

[[Page 131 STAT. 1240]]

        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

[[Page 131 STAT. 1242]]

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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