II 

117TH CONGRESS 

1ST SESSION S. 268 

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 

FEBRUARY 4, 2021 

Ms. WARREN (for herself, Mrs. FEINSTEIN, Mr. MARKEY, Ms. SMITH, Mr. 

BLUMENTHAL, Mr. BROWN, Ms. HIRONO, Mr. WYDEN, Ms. KLOBUCHAR, 

Mr. SANDERS, Mr. DURBIN, Ms. BALDWIN, Mr. MERKLEY, Mr. VAN

HOLLEN, and Mr. WHITEHOUSE) 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; 

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; or 

12 (v) division M or N of the Consoli13 dated Appropriations Act, 2021 (Public 

14 Law 116–260), or an amendment made by 

15 that division; 

16 (4) the term ‘‘covered funds’’ means any con17 tract, subcontract, grant, subgrant, loan, loan guar18 antee, or other payment for which— 

19 (A) the Federal Government provides any 

20 portion of the funds or property that is pro21 vided, requested, or demanded; and 

22 (B) any portion of the funds are appro23 priated or otherwise made available under or to 

24 carry out a Coronavirus pandemic-related pro25 gram, project, or activity; 


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1 (5) the term ‘‘employee’’— 

2 (A) except as provided under subparagraph 

3 (B), means an individual performing services on 

4 behalf of an employer, including any individual 

5 working for an employer under a contract with 

6 such employer (including a contractor, subcon7 tractor, or agent of an employer); and 

8 (B) does not include any Federal employee 

9 or member of the uniformed services (as that 

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

11 United States Code); 

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

13 (A) means any employer— 

14 (i) with respect to covered funds— 

15 (I) the contractor, subcontractor, 

16 grantee, subgrantee, or recipient, as 

17 the case may be, if the contractor, 

18 subcontractor, grantee, subgrantee, or 

19 recipient is an employer; and 

20 (II) any professional membership 

21 organization, certification or other 

22 professional body, any agent or li23 censee of the Federal Government, or 

24 any person acting directly or indiVerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268

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1 rectly in the interest of an employer 

2 receiving covered funds; or 

3 (ii) with respect to covered funds re4 ceived by a State or local government, the 

5 State or local government receiving the 

6 funds and any contractor or subcontractor 

7 of the State or local government; and 

8 (B) does not mean any department, agen9 cy, or other entity of the Federal Government; 

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

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

12 individual seeking employment with, any non13 Federal employer receiving covered funds; or 

14 (B) a Federal personal services contractor 

15 receiving covered funds, former such Federal 

16 personal services contractor, or applicant for a 

17 Federal personal services contract involving 

18 such funds; 

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

20 applicable, inaction) that is discharging, demoting, 

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

22 a manner prejudicial against, or otherwise discrimi23 nating against in any way (including in the hiring 

24 process and including by the threat of any such ac25 tion or inaction) a protected individual as described 


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1 in section 3(a)(1) for a reason described in subpara2 graph (A) or (B) of such section; and 

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

4 means— 

5 (A) the government of each of the several 

6 States, the District of Columbia, the Common7 wealth of Puerto Rico, Guam, American Samoa, 

8 the Virgin Islands, the Commonwealth of the 

9 Northern Mariana Islands, or any other terri10 tory or possession of the United States; or 

11 (B) the government of any political sub12 division of a government listed in subparagraph 

13 (A). 

14 SEC. 3. PROTECTING WHISTLEBLOWERS. 

15 (a) PROHIBITION OF REPRISALS.— 

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

17 not be discharged, demoted, blacklisted, prejudiced 

18 by any action or lack of action, or otherwise dis19 criminated against in any way (including in the hir20 ing process and including by the threat of any such 

21 action or inaction) for— 

22 (A) disclosing, being perceived as dis23 closing, or preparing to disclose (including as24 sisting in disclosing, being perceived as assist25 ing in disclosing, or preparing to assist in disVerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268

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1 closing and including a disclosure made in the 

2 ordinary course of the duties of the protected 

3 individual) to an officer or entity described in 

4 paragraph (2) information that the protected 

5 individual reasonably believes is evidence of 

6 misconduct that violates, obstructs, or under7 mines any statute, rule, or regulation with re8 spect to any Coronavirus pandemic-related pro9 gram, project, or activity, including— 

10 (i) gross mismanagement of an agency 

11 contract, subcontract, grant, or subgrant 

12 relating to covered funds; 

13 (ii) a gross waste of covered funds; 

14 (iii) a substantial and specific danger 

15 to public health or safety; 

16 (iv) an abuse of authority related to 

17 the distribution, implementation, or use of 

18 covered funds, including conflict of interest 

19 or partiality; and 

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

21 regulation related to an agency contract, 

22 subcontract (including the competition for 

23 or negotiation of a contract or sub24 contract), grant, or subgrant, awarded or 

25 issued relating to covered funds; or 


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1 (B) refusing to obey an order that the pro2 tected individual reasonably believes would re3 quire that individual to violate a statute, rule, 

4 or regulation with respect to any Coronavirus 

5 pandemic-related program, project, or activity. 

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

7 entities described in this paragraph are— 

8 (A) the Pandemic Response Accountability 

9 Committee; 

10 (B) an inspector general, including the 

11 Special Inspector General for Pandemic Relief; 

12 (C) the Congressional Oversight Commis13 sion; 

14 (D) the Comptroller General of the United 

15 States; 

16 (E) a Member of Congress; 

17 (F) a congressional committee; 

18 (G) a State or Federal regulatory or law 

19 enforcement agency; 

20 (H)(i) an individual with supervisory au21 thority over a protected individual; or 

22 (ii) another individual who— 

23 (I) has authority to investigate, dis24 cover, or terminate misconduct; and 


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1 (II) works for the non-Federal em2 ployer (in the case of a protected individual 

3 described in section 2(7)(A)), or the Fed4 eral Government (in the case of a pro5 tected individual described in section 

6 2(7)(B)); 

7 (I) a court or grand jury; 

8 (J) an officer or representative of a labor 

9 organization; or 

10 (K) the head of a Federal agency or a des11 ignee of such a head. 

12 (3) APPLICATION.— 

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

14 paragraph (1)— 

15 (i) a protected individual who initiates 

16 or provides evidence of misconduct by a 

17 contractor, subcontractor, grantee, or sub18 grantee in any judicial or administrative 

19 proceeding relating to waste, fraud, or 

20 abuse in connection with a Federal con21 tract or grant shall be deemed to have 

22 made a disclosure covered by such para23 graph; and 

24 (ii) any discharge, demotion, discrimi25 nation, or other reprisal described in paraVerDate Sep 11 2014 20:08 Feb 21, 2021 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S268.IS S268

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1 graph (1) is prohibited even if it is under2 taken at the request of an executive branch 

3 officer or employee, unless the request 

4 takes the form of a non-discretionary di5 rective and is within the authority of the 

6 executive branch official making the re7 quest. 

8 (B) PROTECTION OF WHISTLEBLOWER

9 IDENTITY.— 

10 (i) IN GENERAL.—Except as required 

11 by law, an officer or entity described in 

12 paragraph (2) that receives information 

13 under paragraph (1) and any individual or 

14 entity to which the officer or entity dis15 closes the information may not disclose the 

16 identity or identifying information of the 

17 protected individual providing the informa18 tion without explicit written consent of the 

19 protected individual. 

20 (ii) NOTICE.—If disclosure of the 

21 identity or identifying information of a 

22 protected individual providing information 

23 under paragraph (1) is required by law, 

24 the recipient shall provide timely notice of 

25 the disclosure to the protected individual. 


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1 (b) INVESTIGATION OF COMPLAINTS.— 

2 (1) COMPLAINTS.— 

3 (A) IN GENERAL.—A protected individual 

4 who believes that the individual has been sub5 jected to a reprisal prohibited under subsection 

6 (a) may, within 3 years after learning of the al7 leged reprisal, submit a complaint regarding the 

8 reprisal to the Secretary of Labor in accordance 

9 with paragraph (2). 

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

11 after the submission of a complaint under sub12 paragraph (A), the applicable non-Federal em13 ployer (or the applicable agency head in the 

14 case of a Federal personal services contract in15 volving covered funds) shall submit an answer 

16 to the complaint to the Secretary of Labor. 

17 (2) REMEDY AND ENFORCEMENT AUTHOR18 ITY.— 

19 (A) RULES AND PROCEDURES.—Except to 

20 the extent provided otherwise in this section, 

21 any action alleging a reprisal prohibited under 

22 subsection (a) shall be governed, to the max23 imum extent practicable, by the rules and pro24 cedures for administrative and judicial enforce25 ment, including for investigations, civil actions, 


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1 appeals, and relief, set forth under section 

2 7623(d) of the Internal Revenue Code of 1986. 

3 (B) BURDEN OF PROOF.—The Secretary 

4 of Labor, or the officer presiding in a judicial 

5 or administrative proceeding, shall apply the 

6 legal burdens of proof specified in section 

7 1221(e) of title 5, United States Code, in deter8 mining whether a reprisal prohibited under sub9 section (a) has occurred in accordance with the 

10 rules and procedures under subparagraph (A). 

11 (C) ACCESS TO INVESTIGATIVE FILE OF

12 THE SECRETARY OF LABOR.— 

13 (i) IN GENERAL.—A protected indi14 vidual alleging a reprisal under this section 

15 shall have access to the investigation file of 

16 the Secretary of Labor in accordance with 

17 section 552a of title 5, United States Code 

18 (commonly referred to as the ‘‘Privacy 

19 Act’’). The investigation of the Secretary 

20 of Labor shall be deemed closed for pur21 poses of disclosure under such section 

22 when an individual files an appeal to an 

23 agency head or a court of competent juris24 diction. 


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1 (ii) CIVIL ACTION.—In the event a 

2 protected individual alleging a reprisal 

3 under this section brings a civil action 

4 under this subsection, the protected indi5 vidual and the non-Federal employer (or 

6 the head of the applicable agency in the 

7 case of a Federal personal services con8 tract involving covered funds), if applica9 ble, shall have access to the investigative 

10 file of the Secretary of Labor in accord11 ance with section 552a of title 5, United 

12 States Code. 

13 (iii) EXCEPTION.—The Secretary of 

14 Labor may exclude from disclosure— 

15 (I) information protected from 

16 disclosure by a provision of law; and 

17 (II) any additional information 

18 the Secretary of Labor determines 

19 disclosure of which would impede a 

20 continuing investigation, if such infor21 mation is disclosed once such disclo22 sure would no longer impede such in23 vestigation, unless the Secretary of 

24 Labor determines that disclosure of 

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1 dures, or information could reasonably 

2 be expected to risk circumvention of 

3 the law or disclose the identity of a 

4 confidential source. 

5 (iv) PRIVACY OF INFORMATION.—The 

6 Secretary of Labor investigating an alleged 

7 reprisal under this section may not re8 spond to any inquiry or disclose any infor9 mation from or about any protected indi10 vidual alleging such reprisal, except in ac11 cordance with the provisions of section 

12 552a of title 5, United States Code, or as 

13 required by any other applicable Federal 

14 law. 

15 (c) GENERAL PROVISIONS.— 

16 (1) RIGHTS RETAINED BY EMPLOYEE.—Noth17 ing in this section shall diminish the rights, privi18 leges, or remedies of any protected individual under 

19 any Federal or State law, or under any collective 

20 bargaining agreement. 

21 (2) LIABILITY.—Notwithstanding any other 

22 provision of law, a protected individual shall be im23 mune from civil and criminal liability with respect to 

24 a disclosure by the individual if the individual would 

25 be protected from reprisal under subsection (a) for 


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1 making the disclosure. The protected individual shall 

2 bear the burden of proving that the individual would 

3 be protected from reprisal under subsection (a) for 

4 making the disclosure. 

5 (3) NONENFORCEABILITY OF CERTAIN PROVI6 SIONS WAIVING RIGHTS AND REMEDIES OR REQUIR7 ING ARBITRATION OF DISPUTES.— 

8 (A) WAIVER OF RIGHTS AND REMEDIES.— 

9 Except as provided under subparagraph (C), 

10 the rights and remedies provided for in this sec11 tion may not be waived by any public or private 

12 agreement, policy, form, or condition of employ13 ment, including by any predispute arbitration 

14 agreement. 

15 (B) PREDISPUTE ARBITRATION AGREE16 MENTS.—Except as provided under subpara17 graph (C), no predispute arbitration agreement 

18 shall be valid or enforceable if it requires arbi19 tration of a dispute arising under this section. 

20 (C) EXCEPTION FOR COLLECTIVE BAR21 GAINING AGREEMENTS.—Notwithstanding sub22 paragraphs (A) and (B), an arbitration provi23 sion in a collective bargaining agreement shall 

24 be enforceable as to disputes arising under the 

25 collective bargaining agreement. 


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1 (4) REQUIREMENT TO POST NOTICE OF RIGHTS

2 AND REMEDIES.—Any non-Federal employer receiv3 ing covered funds (and the head of the applicable 

4 agency in the case of a Federal personal services 

5 contract involving covered funds) shall post notice of 

6 the rights and remedies provided under this section. 

7 (d) RULES OF CONSTRUCTION.— 

8 (1) NO IMPLIED AUTHORITY TO RETALIATE

9 FOR NON-PROTECTED DISCLOSURES.—Nothing in 

10 this section may be construed to— 

11 (A) authorize the discharge of, demotion 

12 of, or discrimination or other reprisal against a 

13 protected individual for a disclosure other than 

14 a disclosure protected by subsection (a); or 

15 (B) modify or derogate from a right or 

16 remedy otherwise available to the protected in17 dividual. 

18 (2) RELATIONSHIP TO STATE LAWS.—Nothing 

19 in this section may be construed to preempt, pre20 clude, or limit the protections provided for public or 

21 private employees under State whistleblower laws. 

22 (e) COMPLAINT PORTAL.—The Special Inspector 

23 General for Pandemic Relief, the Pandemic Relief Ac24 countability Committee, and the Congressional Oversight 

25 Commission shall each establish a public website where 


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1 any individual who believes that the individual has been 

2 subjected to a reprisal prohibited under subsection (a) 

3 may submit a complaint regarding the reprisal. Such com4 plaints shall be transmitted to the Secretary of Labor for 

5 enforcement in accordance with this section. 

6 (f) AUTHORIZATION OF APPROPRIATIONS.—There is 

7 authorized to be appropriated to the Secretary of Labor 

8 to carry out this Act $20,000,000 for fiscal year 2021, 

9 to remain available until expended. 

Æ 


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