II 

116TH CONGRESS 

2D SESSION S. 3963 

To protect certain whistleblowers seeking to ensure accountability and oversight of the Nation’s COVID–19 pandemic response, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

JUNE 15, 2020 

Ms. HARRIS (for herself, Ms. WARREN, Mr. MARKEY, Ms. HIRONO, Mr. 

WYDEN, Ms. BALDWIN, Ms. KLOBUCHAR, Mr. SANDERS, Mr. 

BLUMENTHAL, Mr. DURBIN, and Ms. SMITH) introduced the following 

bill; which was read twice and referred to the Committee on Homeland 

Security and Governmental Affairs 

A BILL 

To protect certain whistleblowers seeking to ensure accountability and oversight of the Nation’s COVID–19 pandemic response, and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘COVID–19 Whistle5 blower Protection Act’’. 

6 SEC. 2. DEFINITIONS. 

7 In this Act— 


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1 (1) the term ‘‘abuse of authority’’ means an ar2 bitrary and capricious exercise of authority by a con3 tracting officer or employee that adversely affects 

4 the rights of any individual, or that results in per5 sonal gain or advantage to the officer or employee 

6 or to preferred other individuals; 

7 (2) the term ‘‘CARES Act’’ means the CARES 

8 Act (Public Law 116–136); 

9 (3) the term ‘‘Coronavirus pandemic-related 

10 program, project, or activity’’— 

11 (A) means a program, project, or activity 

12 of the executive branch of the Federal Govern13 ment authorized under or carried out using 

14 amounts made available under an Act to re15 spond to or to provide aid or assistance to ad16 dress, relief from, or funding to address the 

17 outbreak of COVID–19 that is enacted before, 

18 on, or after the date of enactment of this Act; 

19 and 

20 (B) includes any program, project, or ac21 tivity of the executive branch of the Federal 

22 Government authorized under or carried out 

23 using amounts made available under— 

24 (i) the Paycheck Protection Program 

25 and Health Care Enhancement Act (Public 


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1 Law 116–139), or an amendment made by 

2 that Act; 

3 (ii) the CARES Act, or an amend4 ment made by that Act; 

5 (iii) the Families First Coronavirus 

6 Response Act (Public Law 116–127), or an 

7 amendment made by that Act; or 

8 (iv) the Coronavirus Preparedness and 

9 Response Supplemental Appropriations 

10 Act, 2020 (Public Law 116–123), or an 

11 amendment made by that Act; 

12 (4) the term ‘‘covered funds’’ means any con13 tract, subcontract, grant, subgrant, loan, loan guar14 antee, or other payment for which— 

15 (A) the Federal Government provides any 

16 portion of the funds or property that is pro17 vided, requested, or demanded; and 

18 (B) any portion of the funds are appro19 priated or otherwise made available under or to 

20 carry out a Coronavirus pandemic-related pro21 gram, project, or activity; 

22 (5) the term ‘‘employee’’— 

23 (A) except as provided under subparagraph 

24 (B), means an individual performing services on 

25 behalf of an employer, including any individual 


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1 working for an employer under a contract with 

2 such employer (including a contractor, subcon3 tractor, or agent of an employer); and 

4 (B) does not include any Federal employee 

5 or member of the uniformed services (as that 

6 term is defined in section 101(a)(5) of title 10, 

7 United States Code); 

8 (6) the term ‘‘non-Federal employer’’— 

9 (A) means any employer— 

10 (i) with respect to covered funds— 

11 (I) the contractor, subcontractor, 

12 grantee, subgrantee, or recipient, as 

13 the case may be, if the contractor, 

14 subcontractor, grantee, subgrantee, or 

15 recipient is an employer; and 

16 (II) any professional membership 

17 organization, certification or other 

18 professional body, any agent or li19 censee of the Federal Government, or 

20 any person acting directly or indi21 rectly in the interest of an employer 

22 receiving covered funds; or 

23 (ii) with respect to covered funds re24 ceived by a State or local government, the 

25 State or local government receiving the 


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1 funds and any contractor or subcontractor 

2 of the State or local government; and 

3 (B) does not mean any department, agen4 cy, or other entity of the Federal Government; 

5 (7) the term ‘‘protected individual’’ means— 

6 (A) an employee of, former employee of, or 

7 individual seeking employment with, any non8 Federal employer receiving covered funds; or 

9 (B) a Federal personal services contractor 

10 receiving covered funds, former such Federal 

11 personal services contractor, or applicant for a 

12 Federal personal services contract involving 

13 such funds; 

14 (8) the term ‘‘reprisal’’ means an action (or, as 

15 applicable, inaction) that is discharging, demoting, 

16 blacklisting, or acting or failing to take an action in 

17 a manner prejudicial against, or otherwise discrimi18 nating against in any way (including in the hiring 

19 process and including by the threat of any such ac20 tion or inaction) a protected individual as described 

21 in section 3(a)(1) for a reason described in subpara22 graph (A) or (B) of such section; and 

23 (9) the term ‘‘State or local government’’ 

24 means— 


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1 (A) the government of each of the several 

2 States, the District of Columbia, the Common3 wealth of Puerto Rico, Guam, American Samoa, 

4 the Virgin Islands, the Commonwealth of the 

5 Northern Mariana Islands, or any other terri6 tory or possession of the United States; or 

7 (B) the government of any political sub8 division of a government listed in subparagraph 

9 (A). 

10 SEC. 3. PROTECTING WHISTLEBLOWERS. 

11 (a) PROHIBITION OF REPRISALS.— 

12 (1) IN GENERAL.—A protected individual may 

13 not be discharged, demoted, blacklisted, prejudiced 

14 by any action or lack of action, or otherwise dis15 criminated against in any way (including in the hir16 ing process and including by the threat of any such 

17 action or inaction) for— 

18 (A) disclosing, being perceived as dis19 closing, or preparing to disclose (including as20 sisting in disclosing, being perceived as assist21 ing in disclosing, or preparing to assist in dis22 closing and including a disclosure made in the 

23 ordinary course of the duties of the protected 

24 individual) to an officer or entity described in 

25 paragraph (2) information that the protected 


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1 individual reasonably believes is evidence of 

2 misconduct that violates, obstructs, or under3 mines any statute, rule, or regulation with re4 spect to any Coronavirus pandemic-related pro5 gram, project, or activity, including— 

6 (i) gross mismanagement of an agency 

7 contract, subcontract, grant, or subgrant 

8 relating to covered funds; 

9 (ii) a gross waste of covered funds; 

10 (iii) a substantial and specific danger 

11 to public health or safety; 

12 (iv) an abuse of authority related to 

13 the distribution, implementation, or use of 

14 covered funds, including conflict of interest 

15 or partiality; and 

16 (v) a violation of any statute, rule, or 

17 regulation related to an agency contract, 

18 subcontract (including the competition for 

19 or negotiation of a contract or sub20 contract), grant, or subgrant, awarded or 

21 issued relating to covered funds; or 

22 (B) refusing to obey an order that the pro23 tected individual reasonably believes would re24 quire that individual to violate a statute, rule, 


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1 or regulation with respect to any Coronavirus 

2 pandemic-related program, project, or activity. 

3 (2) OFFICERS AND ENTITIES.—The officers and 

4 entities described in this paragraph are— 

5 (A) the Pandemic Response Accountability 

6 Committee; 

7 (B) an inspector general, including the 

8 Special Inspector General for Pandemic Relief; 

9 (C) the Congressional Oversight Commis10 sion; 

11 (D) the Comptroller General of the United 

12 States; 

13 (E) a Member of Congress; 

14 (F) a congressional committee; 

15 (G) a State or Federal regulatory or law 

16 enforcement agency; 

17 (H)(i) an individual with supervisory au18 thority over a protected individual; or 

19 (ii) another individual who— 

20 (I) has authority to investigate, dis21 cover, or terminate misconduct; and 

22 (II) works for the non-Federal em23 ployer (in the case of a protected individual 

24 described in section 2(7)(A)), or the Fed25 eral Government (in the case of a proVerDate Sep 11 2014 05:17 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\S3963.IS S3963

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1 tected individual described in section 

2 2(7)(B)); 

3 (I) a court or grand jury; 

4 (J) an officer or representative of a labor 

5 organization; or 

6 (K) the head of a Federal agency or a des7 ignee of such a head. 

8 (3) APPLICATION.— 

9 (A) IN GENERAL.—For the purposes of 

10 paragraph (1)— 

11 (i) a protected individual who initiates 

12 or provides evidence of misconduct by a 

13 contractor, subcontractor, grantee, or sub14 grantee in any judicial or administrative 

15 proceeding relating to waste, fraud, or 

16 abuse in connection with a Federal con17 tract or grant shall be deemed to have 

18 made a disclosure covered by such para19 graph; and 

20 (ii) any discharge, demotion, discrimi21 nation, or other reprisal described in para22 graph (1) is prohibited even if it is under23 taken at the request of an executive branch 

24 officer or employee, unless the request 

25 takes the form of a non-discretionary diVerDate Sep 11 2014 05:17 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3963.IS S3963

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1 rective and is within the authority of the 

2 executive branch official making the re3 quest. 

4 (B) PROTECTION OF WHISTLEBLOWER

5 IDENTITY.— 

6 (i) IN GENERAL.—Except as required 

7 by law, an officer or entity described in 

8 paragraph (2) that receives information 

9 under paragraph (1) and any individual or 

10 entity to which the officer or entity dis11 closes the information may not disclose the 

12 identity or identifying information of the 

13 protected individual providing the informa14 tion without explicit written consent of the 

15 protected individual. 

16 (ii) NOTICE.—If disclosure of the 

17 identity or identifying information of a 

18 protected individual providing information 

19 under paragraph (1) is required by law, 

20 the recipient shall provide timely notice of 

21 the disclosure to the protected individual. 

22 (b) INVESTIGATION OF COMPLAINTS.— 

23 (1) COMPLAINTS.— 

24 (A) IN GENERAL.—A protected individual 

25 who believes that the individual has been subVerDate Sep 11 2014 05:17 Jun 26, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\S3963.IS S3963

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1 jected to a reprisal prohibited under subsection 

2 (a) may, within 3 years after learning of the al3 leged reprisal, submit a complaint regarding the 

4 reprisal to the Secretary of Labor in accordance 

5 with paragraph (2). 

6 (B) RESPONSE.—Not later than 60 days 

7 after the submission of a complaint under sub8 paragraph (A), the applicable non-Federal em9 ployer (or the applicable agency head in the 

10 case of a Federal personal services contract in11 volving covered funds) shall submit an answer 

12 to the complaint to the Secretary of Labor. 

13 (2) REMEDY AND ENFORCEMENT AUTHOR14 ITY.— 

15 (A) RULES AND PROCEDURES.—Except to 

16 the extent provided otherwise in this section, 

17 any action alleging a reprisal prohibited under 

18 subsection (a) shall be governed, to the max19 imum extent practicable, by the rules and pro20 cedures for administrative and judicial enforce21 ment, including for investigations, civil actions, 

22 appeals, and relief, set forth under section 

23 7623(d) of the Internal Revenue Code of 1986. 

24 (B) BURDEN OF PROOF.—The Secretary 

25 of Labor, or the officer presiding in a judicial 


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1 or administrative proceeding, shall apply the 

2 legal burdens of proof specified in section 

3 1221(e) of title 5, United States Code, in deter4 mining whether a reprisal prohibited under sub5 section (a) has occurred in accordance with the 

6 rules and procedures under subparagraph (A). 

7 (C) ACCESS TO INVESTIGATIVE FILE OF

8 THE SECRETARY OF LABOR.— 

9 (i) IN GENERAL.—A protected indi10 vidual alleging a reprisal under this section 

11 shall have access to the investigation file of 

12 the Secretary of Labor in accordance with 

13 section 552a of title 5, United States Code 

14 (commonly referred to as the ‘‘Privacy 

15 Act’’). The investigation of the Secretary 

16 of Labor shall be deemed closed for pur17 poses of disclosure under such section 

18 when an individual files an appeal to an 

19 agency head or a court of competent juris20 diction. 

21 (ii) CIVIL ACTION.—In the event a 

22 protected individual alleging a reprisal 

23 under this section brings a civil action 

24 under this subsection, the protected indi25 vidual and the non-Federal employer (or 


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1 the head of the applicable agency in the 

2 case of a Federal personal services con3 tract involving covered funds), if applica4 ble, shall have access to the investigative 

5 file of the Secretary of Labor in accord6 ance with section 552a of title 5, United 

7 States Code. 

8 (iii) EXCEPTION.—The Secretary of 

9 Labor may exclude from disclosure— 

10 (I) information protected from 

11 disclosure by a provision of law; and 

12 (II) any additional information 

13 the Secretary of Labor determines 

14 disclosure of which would impede a 

15 continuing investigation, if such infor16 mation is disclosed once such disclo17 sure would no longer impede such in18 vestigation, unless the Secretary of 

19 Labor determines that disclosure of 

20 law enforcement techniques, proce21 dures, or information could reasonably 

22 be expected to risk circumvention of 

23 the law or disclose the identity of a 

24 confidential source. 


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1 (iv) PRIVACY OF INFORMATION.—The 

2 Secretary of Labor investigating an alleged 

3 reprisal under this section may not re4 spond to any inquiry or disclose any infor5 mation from or about any protected indi6 vidual alleging such reprisal, except in ac7 cordance with the provisions of section 

8 552a of title 5, United States Code, or as 

9 required by any other applicable Federal 

10 law. 

11 (c) GENERAL PROVISIONS.— 

12 (1) RIGHTS RETAINED BY EMPLOYEE.—Noth13 ing in this section shall diminish the rights, privi14 leges, or remedies of any protected individual under 

15 any Federal or State law, or under any collective 

16 bargaining agreement. 

17 (2) LIABILITY.—Notwithstanding any other 

18 provision of law, a protected individual shall be im19 mune from civil and criminal liability with respect to 

20 a disclosure by the individual if the individual would 

21 be protected from reprisal under subsection (a) for 

22 making the disclosure. The protected individual shall 

23 bear the burden of proving that the individual would 

24 be protected from reprisal under subsection (a) for 

25 making the disclosure. 


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1 (3) NONENFORCEABILITY OF CERTAIN PROVI2 SIONS WAIVING RIGHTS AND REMEDIES OR REQUIR3 ING ARBITRATION OF DISPUTES.— 

4 (A) WAIVER OF RIGHTS AND REMEDIES.— 

5 Except as provided under subparagraph (C), 

6 the rights and remedies provided for in this sec7 tion may not be waived by any public or private 

8 agreement, policy, form, or condition of employ9 ment, including by any predispute arbitration 

10 agreement. 

11 (B) PREDISPUTE ARBITRATION AGREE12 MENTS.—Except as provided under subpara13 graph (C), no predispute arbitration agreement 

14 shall be valid or enforceable if it requires arbi15 tration of a dispute arising under this section. 

16 (C) EXCEPTION FOR COLLECTIVE BAR17 GAINING AGREEMENTS.—Notwithstanding sub18 paragraphs (A) and (B), an arbitration provi19 sion in a collective bargaining agreement shall 

20 be enforceable as to disputes arising under the 

21 collective bargaining agreement. 

22 (4) REQUIREMENT TO POST NOTICE OF RIGHTS

23 AND REMEDIES.—Any non-Federal employer receiv24 ing covered funds (and the head of the applicable 

25 agency in the case of a Federal personal services 


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1 contract involving covered funds) shall post notice of 

2 the rights and remedies provided under this section. 

3 (d) RULES OF CONSTRUCTION.— 

4 (1) NO IMPLIED AUTHORITY TO RETALIATE

5 FOR NON-PROTECTED DISCLOSURES.—Nothing in 

6 this section may be construed to— 

7 (A) authorize the discharge of, demotion 

8 of, or discrimination or other reprisal against a 

9 protected individual for a disclosure other than 

10 a disclosure protected by subsection (a); or 

11 (B) modify or derogate from a right or 

12 remedy otherwise available to the protected in13 dividual. 

14 (2) RELATIONSHIP TO STATE LAWS.—Nothing 

15 in this section may be construed to preempt, pre16 clude, or limit the protections provided for public or 

17 private employees under State whistleblower laws. 

18 (e) COMPLAINT PORTAL.—The Special Inspector 

19 General for Pandemic Relief, the Pandemic Relief Ac20 countability Committee, and the Congressional Oversight 

21 Commission shall each establish a public website where 

22 any individual who believes that the individual has been 

23 subjected to a reprisal prohibited under subsection (a) 

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1 plaints shall be transmitted to the Secretary of Labor for 

2 enforcement in accordance with this section. 

3 (f) FUNDING.—There is appropriated to the Sec4 retary of Labor for the fiscal year ending September 30, 

5 2020, out of any money in the Treasury not otherwise ap6 propriated, $20,000,000 to carry out this Act, to remain 

7 available until expended. 

Æ 


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