Add 25, Pub Health L; amd 6509 & 6530, Ed L; amd 740 & 741, Lab L
Prohibits participation in torture and improper treatment of incarcerated individuals by health care professionals; prohibits a health care professional from engaging, assisting or planning the torture or improper treatment of an incarcerated individual; requires health care professionals to report torture and improper treatment.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A4863A
SPONSOR: Kelles (MS) TITLE OF BILL:
An act to amend the public health law, the education law and the labor
law, in relation to prohibiting participation in torture and improper
treatment of incarcerated individuals by health care professionals
PURPOSE OR GENERAL IDEA OF BILL:
To bar health care professionals from participating in torture or
improper treatment of incarcerated persons, and provide a means by which
health care professionals responsible for the care of incarcerated
persons or detainees can refuse an order to directly or indirectly
participate in torture and to insist on providing professionally respon-
sible care and treatment.
SUMMARY OF SPECIFIC PROVISIONS:
Bill section one is a statement of the legislature's intent to give
effect to existing international treaties, and standards, federal, state
and local laws, and professional standards.
Bill section 2 would create a new Public Health Law § 25. Subdivision 1
defines "health care professional" to include all health professions
licensed by Title Eight of the Education Law. The definitions of
"torture" and "improper treatment" of a incarcerated person are consist-
ent with international treaties, federal and state law and professional
stand- ards. "Incarcerated person" is defined "as any person who is
subject to punishment, detention, incarceration, interrogation, intim-
idation or coercion.
Subdivision 2 of the new § 25 provides that it shall be an element cf
any violation of this section that the health care professional knew or
reasonably should have known the nature of his or her actions.
Subdivision 3 establishes general obligations of health care profes-
sionals in relation to the treatment of incarcerated persons and
detained persons, consistent with generally applicable legal, health and
professional standards, including protection of confidential patient
information.
Subdivision 4 prohibits direct and indirect actions which constitute
participation, complicity, incitement, assistance, planning, design,
attempt, or conspiracy to commit torture or improper treatment of an
incarcerated person. Health care professionals may not use their know-
ledge or skill to adversely affect an incarcerated person's health by
punishment, detention, incarceration, interrogation, intimidation or
coercion, or to evaluate or treat an incarcerated person so that such
improper treatment may be used or continued.
Subdivision 5 permits the proper conduct of health care professionals
towards incarcerated persons: to provide proper care and treatment as
reasonably able under the circumstances. The purpose must be to evalu-
ate, treat, protect, or improve the physical or mental health or condi-
tion of an incarcerated person. They may restrain or sedate an incarcer-
ated person, where such actions comply with appropriate standards, are
necessary to protect health or safety, and do not harm the incarcerated
person. Health care professionals may appropriately participate in the
investigation, prosecution or defense in criminal, administrative, civil
matters. Health care professionals may provide training only in relation
to recognizing and responding to physical and mental illness, the
effects of interrogation techniques, and the development of effective
interrogation strategies, so long as such training is not in support of
specific interrogations.
Subdivision 6 establishes a duty to report, consistent with protecting
the safety of both the incarcerated person and the health care profes-
sional.
Subdivision 7 establishes mitigation for compliance with an investi-
gation of, or reporting, alleged torture or mistreatment of incarcerated
persons.
Subdivision 8 applies this section to conduct taking place within and
beyond New York's borders. Bill sections 3 and 4 add the violation of
the new § 25 to the definition of professional misconduct in Education
Law §§ 6509 (health care professionals other than physicians or physi-
cian assistants) and 6530 (physicians and physician assistants). Bill
section 5,6,7 and 8 adds whistle blower protections for employees and
contractors to labor law §§ 740 and 741. Bill section 9 clarifies that
the enactment of this law shall not be construed'to mean that the
actions it prohibits are not already or otherwise unlawful, nor that
conduct not covered by the bill does not violate other law.
Section 10 is a severability clause stating that if any provision or
application of this act is held to be invalid, that shall'not affect the
validity or effectiveness of any other provision or application of this
act.
Section 11 is the effective date of the first of January next succeeding
the date on which it shall have become a law; provided, however, that if
chapter 522 of the laws of 2021 shall not have taken effect on or before
such date, then sections five.and six of this act shall take effect on
the same date and in the same manner as such chapter of the laws of 2021
takes effect.
JUSTIFICATION:
There is very strong evidence that U.S. health professionals have been
directly engaged in or complicit in torture and other cruel, inhuman or
degrading treatment of incarcerated persons and detainees. {1} {2} The
situation does not appear to be that of a few errant individuals, but a
more systemic problem, facilitated by official policy. Most frequently,
involvement is indirect, such as enabling mistreatment to continue by
treating the consequences of the mistreatment. However, complicity has
also become more direct: evaluating an incarcerated person prior to
interrogation and setting the limits for torture, resuscitating or
treating an incarcerated person during an interrogation session so that
the interrogation may continue, making an incarcerated person's medical
records available to interrogators, advising on strategies for a torture
session, and developing torture techniques.
Health care professionals have an ethical obligation to protect incar-
cerated people against torture and other cruel, inhuman, or degrading
treatment. However, we now know that American governmental authorities
have reinterpreted both the meaning of torture and health professionals'
ethical obligations to encourage them to participate in these acts. It
is reasonable to assume that state and local authorities, as well as
foreign governments, are also engaging in such practices and involving
American health care professionals.
Widely accepted principles of medical ethics clearly define the roles
and responsibilities of health care professionals in regard to the
ethical treatment of incarcerated persons and detainees. In 1975, the
World Medical Association adopted the Declaration of Tokyo, which
contained the "Guidelines for Medical Doctors concerning Torture and
other Cruel, Inhuman or Degrading Treatment or Punishment in relation to
Detention and Imprisonment." These guidelines were amended and strength-
ened in 2006 to forbid the participation of physicians in any interro-
gation of an individual detainee or incarcerated person. In 1982, the UN
General Assembly adopted "Principles of medical ethics relevant to the
role of health personnel, particularly physicians, in the protection of
incarcerated persons against torture and other cruel, inhuman or degrad-
ing treatment or punishment," {3} drafted by the World Health Organiza-
tion. The Ameri- can Medical Association, the American Psychiatric Asso-
ciation, and other professional organizations have adopted these and
similar principles.
For professionals licensed by New York State, it is appropriate for New
York to adopt legislation that provides accountability and implements
these widely held rules of professional conduct. Both the Declaration of
Tokyo and the UN principles call for all governments and professional
organizations to adopt standards implementing these principles.
A professional licensed by the State of New York who comes to the aid of
an incarcerated person, detainee, victim of torture etc., under the
general obligations of health professionals should not be presumed to be
in violation when she or he is fulfilling the ethical principle of bene-
ficence. In contrast, a professional who, for example, attends to an
incarcerated person, detainee, victim of torture, etc. in order to allow
torture or improper treatment to commence or continue is not acting'
beneficently. Such practices are inconsistent with ethics and standards
in the health profession and are violations of this legislation.
{1} US Senate Intelligence Committee Study of the Central Intelligence
Agency's Detention and Interrogation Program, December 13, 2012.
(2) OMS Guidelines on Medical and Psychological Support to Detainee
Rendition, Interrogation and Detention, 2004; Approved for release
2016/06/10 C06541536 (3) (3) National Security Act.
(31 Resolution 37/194 (Principles of Medical Ethics) adopted by the
United Nations General Assembly on 19 December 1982.
http://ggq.cioms.ch/19983testsofguidlines.htrn.
PRIOR LEGISLATIVE HISTORY:
2008: A9891 - Rules
2009-10: A6665c - 3rd reading
2011-12: A5891a - Rules
2013-14: A4440 - Rules
2015-16: A4489 - 3rd reading
2017-18: A3079 - 3rd reading
2019-20: A1192 - 3rd reading
2021-22: A306a - 3rd reading
FISCAL IMPLICATIONS:
None
EFFECTIVE DATE:
This act shall take effect on the first of January next succeeding the
date on which it shall have become a law; provided, however, that if
chapter 522 of the laws of 2021 shall not have taken effect on or before
such date, then sections five and six of this act shall take effect on
the same date and in the same manner as such chapter of the laws of 2021
takes effect.
STATE OF NEW YORK
________________________________________________________________________
4863--A
2023-2024 Regular Sessions
IN ASSEMBLY
February 24, 2023
___________
Introduced by M. of A. KELLES, GLICK, PAULIN, COOK, L. ROSENTHAL, HEVE-
SI, BRONSON, FAHY, DICKENS, TAYLOR, SIMON, SAYEGH, CRUZ, REYES,
DARLING, GALLAGHER, SEAWRIGHT, BURDICK, JACKSON, LAVINE, GONZALEZ-RO-
JAS, BICHOTTE HERMELYN, OTIS, ZINERMAN, BURGOS, MAMDANI, ARDILA, SHIM-
SKY, LEVENBERG, AUBRY, GIBBS -- Multi-Sponsored by -- M. of A.
CARROLL, DINOWITZ, EPSTEIN, HUNTER, LUPARDO, PEOPLES-STOKES, PRETLOW
-- read once and referred to the Committee on Higher Education --
committee discharged, bill amended, ordered reprinted as amended and
recommitted to said committee
AN ACT to amend the public health law, the education law and the labor
law, in relation to prohibiting participation in torture and improper
treatment of incarcerated individuals by health care professionals
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Legislative policy and intent. This legislation is based
2 on, and is intended to give effect to, international treaties and stand-
3 ards; federal, state and local law; and professional standards relating
4 to torture, improper treatment of incarcerated individuals, and related
5 matters. It is guided by two basic principles: (1) health care profes-
6 sionals shall be dedicated to providing the highest standard of health
7 care, with compassion and respect for human dignity and rights; and (2)
8 torture and improper treatment of incarcerated individuals are wrong and
9 inconsistent with the practice of the health care professions. The
10 legislature finds that the conduct prohibited by this act violates the
11 ethical and legal obligations of licensed health care professionals.
12 This legislation will further protect the professionalism of New York
13 state licensed health care professionals by authorizing and obligating
14 them to refuse to participate in torture and improper treatment of
15 incarcerated individuals, which in turn will protect the life and health
16 of the people of the state and those with whom New York licensed health
17 care professionals interact. A health care professional who comes to
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD07802-03-3
A. 4863--A 2
1 the aid of an incarcerated individual should not be presumed to be in
2 violation when they are fulfilling the ethical principle of beneficence.
3 In contrast, a health care professional who, for example, attends to an
4 incarcerated individual in order to allow torture or improper treatment
5 to commence or continue is not acting beneficently. Such practices are
6 inconsistent with professional ethics and standards and are violations
7 of this legislation. The legislature is mindful that ordinarily there
8 are limits on New York state's jurisdiction relating to conduct outside
9 the state or under federal authority. However, it is proper for the
10 state to regulate health care professional licensure in relation to a
11 professional's conduct, even where the conduct occurs outside the state;
12 certain wrongful out-of-state conduct is already grounds for profes-
13 sional discipline. Therefore, it is the legislature's intent that this
14 legislation be applied to the fullest extent possible.
15 § 2. The public health law is amended by adding a new section 25 to
16 read as follows:
17 § 25. Participation in torture or improper treatment of incarcerated
18 individuals by health care professionals. 1. Definitions. As used in
19 this section, unless the context clearly requires otherwise, the follow-
20 ing terms have the following meanings:
21 (a) "Health care professional" means any person licensed, registered,
22 certified, or exempt to practice under (i) any of the following articles
23 of the education law: one hundred thirty-one (medicine), one hundred
24 thirty-one-B (physician assistants), one hundred thirty-one-C (special-
25 ist assistants), one hundred thirty-two (chiropractic), one hundred
26 thirty-three (dentistry, dental hygiene, and registered dental assist-
27 ing), one hundred thirty-six (physical therapy and physical therapist
28 assistants), one hundred thirty-seven (pharmacy), one hundred thirty-
29 nine (nursing), one hundred forty (professional midwifery practice act),
30 one hundred forty-one (podiatry), one hundred forty-three (optometry),
31 one hundred forty-four (ophthalmic dispensing), one hundred fifty-three
32 (psychology), one hundred fifty-four (social work), one hundred fifty-
33 five (massage therapy), one hundred fifty-six (occupational therapy),
34 one hundred fifty-seven (dietetics and nutrition), one hundred fifty-
35 nine (speech-language pathologists and audiologists), one hundred sixty
36 (acupuncture), one hundred sixty-three (mental health practitioners),
37 one hundred sixty-four (respiratory therapists and respiratory therapy
38 technicians), one hundred sixty-five (clinical laboratory technology
39 practice act), or one hundred sixty-six (medical physics practice), or
40 (ii) article thirty-five of this chapter (practice of radiologic tech-
41 nology).
42 (b) "Torture" means any intentional act or intentional omission by
43 which severe pain or suffering, whether physical or mental, is inflicted
44 on a person for no lawful purpose or for such purposes as obtaining from
45 the person or from a third person information or a confession, punishing
46 or disciplining or retaliating against the person for an act the person
47 or a third person has carried out (including the holding of a belief or
48 membership in any group) or is suspected of having or perceived to have
49 carried out, or intimidating or coercing the person or a third person,
50 or for any reason based on discrimination of any kind. For the purposes
51 of this section, it shall not be an element of torture that such acts be
52 committed by a government or non-government actor, entity, or official;
53 under color of law; or not under color of law.
54 (c) "Improper treatment" includes any cruel, inhuman or degrading
55 treatment or punishment as those terms are defined in and applied by
56 applicable international treaties including but not limited to the
A. 4863--A 3
1 Convention Against Torture, and Other Cruel, Inhumane, or Degrading
2 Treatment or Punishment, the International Covenant on Civil and Poli-
3 tical Rights, the United Nations Standard Minimum Rules for Treatment of
4 Prisoners, the Body of Principles for the Protection of All Persons
5 Under Any Form of Detention or Imprisonment, the Basic Principles for
6 the Treatment of Prisoners and, the United Nations Standard Minimum
7 Rules for the Administration of Juvenile Justice and their corresponding
8 interpreting bodies. Improper treatment also includes any cruel and
9 unusual punishment as defined in the United States Constitution or the
10 New York state constitution. Improper treatment also includes any
11 violation of subdivision three or four of this section, any form of
12 physical brutality, improper use of force, deprivation of food, water,
13 basic hygiene materials and access, or other basic human needs or living
14 conditions, or any violation of applicable New York state law governing
15 the proper treatment of incarcerated individuals. For the purposes of
16 this section, it shall not be an element of improper treatment that such
17 acts be committed by a government actor, entity, or official or by a
18 non-government actor, entity, or official; or that such acts be commit-
19 ted under color of law or not under color of law. The commissioner shall
20 provide guidance to health care professionals regarding acts or omis-
21 sions that constitute improper treatment under this section and post the
22 guidance on the department's website.
23 (d) "Incarcerated individual" means any person who is subject to
24 punishment, detention, incarceration, interrogation, intimidation or
25 coercion, regardless of whether such action is performed or committed by
26 a government or non-government actor, entity, or official; under color
27 of law; or not under color of law.
28 (e) To "adversely affect" a person's physical or mental health or
29 condition does not include causing adverse effects that may arise from
30 treatment or care when that treatment or care is performed in accordance
31 with generally applicable legal, health and professional standards and
32 for the purposes of evaluating, treating, protecting or improving the
33 person's health.
34 (f) "Interrogation" means the questioning related to law enforcement,
35 the enforcement of rules or regulations of an institution in which
36 people are detained through the criminal justice system or for military
37 or national security reasons (such as a jail or other detention facili-
38 ty, police facility, prison, immigration facility, or military facility)
39 or to military and national security intelligence gathering, whether by
40 a government or non-government actor, entity or official. "Interro-
41 gation" shall also include questioning to aid or accomplish any illegal
42 activity or purpose, whether by a government or non-government actor,
43 entity or official. Interrogations are distinct from questioning used by
44 health care professionals to assess the physical or mental condition of
45 an individual.
46 2. Knowledge. A health care professional who receives information
47 that indicates that an incarcerated individual as defined by this
48 section is being, may in the future be, or has been subjected to torture
49 or improper treatment, must use due diligence in fulfilling all of their
50 responsibilities under this section.
51 3. General obligations of health care professionals. (a) Every health
52 care professional shall provide every incarcerated individual under
53 their professional care with care or treatment consistent with generally
54 applicable legal, health and professional standards to the extent that
55 they are reasonably able to do so under the circumstances, including
56 protecting the confidentiality of patient information.
A. 4863--A 4
1 (b) In all clinical assessments relating to an incarcerated individ-
2 ual, whether for therapeutic or evaluative purposes, health care profes-
3 sionals shall exercise their professional judgment independent of the
4 interests of a government or other third party.
5 4. Certain conduct of health care professionals prohibited. (a) No
6 health care professional shall knowingly, recklessly, or negligently
7 apply their knowledge or skills in relation to, engage in any profes-
8 sional relationship with, or perform professional services in relation
9 to any incarcerated individual unless the purpose is solely to evaluate,
10 treat, protect, or improve the physical or mental health or condition of
11 the incarcerated individual (except as permitted by paragraph (b) or (c)
12 of subdivision five of this section).
13 (b) No health care professional shall knowingly, recklessly, or negli-
14 gently engage, directly or indirectly, in any act which constitutes
15 torture or improper treatment of an incarcerated individual, which may
16 include participation in, complicity in, incitement to, assistance in,
17 planning or design of, cover up of, failure to document, or attempt or
18 conspiracy to commit such torture or improper treatment. Prohibited
19 forms of engagement include but are not limited to:
20 (i) knowingly, recklessly, or negligently providing means, knowledge
21 or skills, including clinical findings or treatment, with the intent to
22 facilitate the practice of torture or improper treatment;
23 (ii) knowingly, recklessly, or negligently permitting their knowledge,
24 skills or clinical findings or treatment to be used in the process of or
25 to facilitate torture or improper treatment;
26 (iii) knowingly, recklessly, or negligently examining, evaluating, or
27 treating an incarcerated individual to certify whether torture or
28 improper treatment can begin, be continued, or be resumed;
29 (iv) being present while torture or improper treatment is being admin-
30 istered;
31 (v) omitting or suppressing indications of torture or improper treat-
32 ment from records or reports; and
33 (vi) altering health care records or reports to hide, misrepresent or
34 destroy evidence of torture or improper treatment.
35 (c) No health care professional shall knowingly, recklessly, or negli-
36 gently apply their knowledge or skills or perform any professional
37 service in order to assist in the punishment, detention, incarceration,
38 intimidation, or coercion of an incarcerated individual when such
39 assistance is provided in a manner that may adversely affect the phys-
40 ical or mental health or condition of the incarcerated individual
41 (except as permitted by paragraph (a) or (b) of subdivision five of this
42 section).
43 (d) No health care professional shall participate in the interrogation
44 of an incarcerated individual, including being present in the interro-
45 gation room, asking or suggesting questions, advising on the use of
46 specific interrogation techniques, monitoring the interrogation, or
47 medically or psychologically evaluating a person for the purpose of
48 identifying potential interrogation methods or strategies. However, this
49 paragraph shall not bar a health care professional from being present
50 for the interrogation of a minor under paragraph (a) of subdivision five
51 of this section or engaging in conduct under paragraph (d) of subdivi-
52 sion five of this section.
53 5. Certain conduct of health care professionals permitted. A health
54 care professional may engage in the following conduct so long as it does
55 not violate subdivision three or four of this section, it does not
A. 4863--A 5
1 adversely affect the physical or mental health or condition of an incar-
2 cerated individual or potential subject, and is not otherwise unlawful:
3 (a) appropriately participating or aiding in the investigation, prose-
4 cution, or defense of a criminal, administrative or civil matter,
5 including presence during the interrogation of a minor at the request of
6 the minor or the minor's parent or guardian and for the purpose of
7 supporting the health of the minor;
8 (b) participating in an act that restrains an incarcerated individual
9 or temporarily alters the physical or mental activity of an incarcerated
10 individual, where the act complies with generally applicable legal,
11 health and professional standards, is necessary for the protection of
12 the physical or mental health, condition or safety of the incarcerated
13 individual, other incarcerated individuals, or persons caring for,
14 guarding or confining the incarcerated individual;
15 (c) conducting bona fide human subject research in accordance with
16 generally accepted legal, health and professional standards where the
17 research includes safeguards for human subjects equivalent to those
18 required by federal law, including informed consent and institutional
19 review board approval where applicable;
20 (d) training related to the following purposes, so long as it is not
21 provided in support of specific ongoing or anticipated interrogations:
22 (i) recognizing and responding to persons with physical or mental
23 illness or conditions,
24 (ii) the possible physical and mental effects of particular techniques
25 and conditions of interrogation, or
26 (iii) the development of effective interrogation strategies not
27 involving the practice of torture or improper treatment.
28 6. Duty to report. A health care professional who has reasonable
29 grounds (not based solely on publicly available information) to believe
30 that torture, improper treatment or other conduct in violation of this
31 section has occurred, is occurring, or will occur shall, as soon as is
32 possible without jeopardizing the physical safety of such professional,
33 the incarcerated individual, or other parties, report such conduct to:
34 (a) a government agency that the health care professional reasonably
35 believes has legal authority to punish or prevent the continuation of
36 torture or the improper treatment of an incarcerated individual or
37 conduct in violation of this section and is reasonably likely to attempt
38 to do so; or
39 (b) a governmental or non-governmental entity that the health care
40 professional reasonably believes will notify such a government agency of
41 the torture or the improper treatment of an incarcerated individual or
42 conduct in violation of this section or take other action to publicize
43 or prevent such torture, treatment or conduct; and
44 (c) in addition to reporting under paragraph (a) or (b) of this subdi-
45 vision: (i) in the case of an alleged violation by a health care profes-
46 sional licensed under article one hundred thirty-one, one hundred thir-
47 ty-one-B or one hundred thirty-one-C of the education law, a report
48 shall be filed with the office of professional medical conduct; and (ii)
49 in the case of an alleged violation by any other health care profes-
50 sional licensed, registered or certified under title eight of the educa-
51 tion law, a report shall be filed with the office of professional disci-
52 pline; provided that for the purpose of this paragraph, where a person
53 holds a license, registration or certification under the laws of a
54 jurisdiction other than the state of New York that is for a profession
55 substantially comparable to one listed in paragraph (a) of subdivision
56 one of this section, the person shall be deemed to be a health care
A. 4863--A 6
1 professional and the person's license, registration or certification
2 shall be deemed to be under the appropriate article of title eight of
3 the education law.
4 7. Mitigation. The following may be considered in full or partial
5 mitigation of a violation of this section by the health care profes-
6 sional:
7 (a) compliance with subdivision six of this section; or
8 (b) cooperation in good faith with an investigation of a violation of
9 this section.
10 8. Applicability. This section shall apply to conduct taking place
11 within or outside New York state, and without regard to whether the
12 conduct is committed by a governmental or non-governmental entity, offi-
13 cial, or actor or under actual or asserted color of law.
14 9. Scope of practice not expanded. This section shall not be construed
15 to expand the lawful scope of practice of any health care professional.
16 § 3. Section 6509 of the education law is amended by adding a new
17 subdivision 15 to read as follows:
18 (15) Any violation of section twenty-five of the public health law
19 (relating to participation in torture or improper treatment of incarcer-
20 ated individuals by health care professionals), subject to mitigation
21 under that section.
22 § 4. Section 6530 of the education law is amended by adding a new
23 subdivision 51 to read as follows:
24 51. Any violation of section twenty-five of the public health law
25 (relating to participation in torture or improper treatment of incarcer-
26 ated individuals by health care professionals), subject to mitigation
27 under that section.
28 § 5. Paragraphs (b) and (c) of subdivision 2 of section 740 of the
29 labor law, as amended by chapter 522 of the laws of 2021, are amended
30 and a new paragraph (d) is added to read as follows:
31 (b) provides information to, or testifies before, any public body
32 conducting an investigation, hearing or inquiry into any such activity,
33 policy or practice by such employer; [or]
34 (c) objects to, or refuses to participate in any such activity, policy
35 or practice[.]; or
36 (d) reports or threatens to report any violation of section twenty-
37 five of the public health law (relating to participation in torture or
38 improper treatment of incarcerated individuals by health care profes-
39 sionals).
40 § 6. Subdivision 3 of section 740 of the labor law, as amended by
41 chapter 522 of the laws of 2021, is amended to read as follows:
42 3. Application. The protection against retaliatory action provided by
43 paragraph (a) of subdivision two of this section pertaining to disclo-
44 sure to a public body shall not apply to an employee who makes such
45 disclosure to a public body unless the employee has made a good faith
46 effort to notify [his or her] their employer by bringing the activity,
47 policy or practice to the attention of a supervisor of the employer and
48 has afforded such employer a reasonable opportunity to correct such
49 activity, policy or practice. Such employer notification shall not be
50 required where: (a) there is an imminent and serious danger to the
51 public health or safety; (b) the employee reasonably believes that
52 reporting to the supervisor would result in a destruction of evidence or
53 other concealment of the activity, policy or practice; (c) such activ-
54 ity, policy or practice could reasonably be expected to lead to endan-
55 gering the welfare of a minor; (d) the employee reasonably believes that
56 reporting to the supervisor would result in physical harm to the employ-
A. 4863--A 7
1 ee or any other person; [or] (e) the employee reasonably believes that
2 the supervisor is already aware of the activity, policy or practice and
3 will not correct such activity, policy or practice; or (f) such activ-
4 ity, policy, or practice constitutes a violation under section twenty-
5 five of the public health law (participation in torture or improper
6 treatment of incarcerated individuals by health care professionals).
7 § 7. Paragraphs (a) and (b) of subdivision 2 of section 741 of the
8 labor law, as amended by chapter 117 of the laws of 2020, are amended
9 and a new paragraph (c) is added to read as follows:
10 (a) discloses or threatens to disclose to a supervisor, to a public
11 body, to a news media outlet, or to a social media forum available to
12 the public at large, an activity, policy or practice of the employer or
13 agent that the employee, in good faith, reasonably believes constitutes
14 improper quality of patient care or improper quality of workplace safe-
15 ty; [or]
16 (b) objects to, or refuses to participate in any activity, policy or
17 practice of the employer or agent that the employee, in good faith,
18 reasonably believes constitutes improper quality of patient care or
19 improper quality of workplace safety[.]; or
20 (c) reports or threatens to report any violation of section twenty-
21 five of the public health law (participation in torture or improper
22 treatment of incarcerated individuals by health care professionals).
23 § 8. Subdivision 3 of section 741 of the labor law, as amended by
24 chapter 117 of the laws of 2020, is amended to read as follows:
25 3. Application. The protection against retaliatory personnel action
26 provided by subdivision two of this section shall not apply unless the
27 employee has brought the improper quality of patient care or improper
28 quality of workplace safety to the attention of a supervisor and has
29 afforded the employer a reasonable opportunity to correct such activity,
30 policy or practice. This subdivision shall not apply to an action or
31 failure to act described in paragraph (a) of subdivision two of this
32 section where the improper quality of patient care or improper quality
33 of workplace safety described therein presents an imminent threat to
34 public health or safety or to the health of a specific patient or
35 specific health care employee and the employee reasonably believes in
36 good faith that reporting to a supervisor would not result in corrective
37 action; or to any report of a violation under section twenty-five of the
38 public health law (participation in torture or improper treatment of
39 incarcerated individuals by health care professionals).
40 § 9. The introduction or enactment of this act shall not be construed
41 to mean that: (a) conduct described by this act does not already violate
42 state law or constitute professional misconduct; or (b) conduct other
43 than that described by this act does not violate other state law or
44 otherwise constitute professional misconduct.
45 § 10. Severability. If any provision of this act, or any application
46 of any provision of this act, is held to be invalid, that shall not
47 affect the validity or effectiveness of any other provision of this act
48 or any other application of any provision of this act.
49 § 11. This act shall take effect on the first of January next
50 succeeding the date on which it shall have become a law.
