[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 2127 Introduced in Senate (IS)]

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114th CONGRESS
  1st Session
                                S. 2127

 To provide appropriate protections to probationary Federal employees, 
to provide the Special Counsel with adequate access to information, to 
provide greater awareness of Federal whistleblower protections, and for 
                            other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 1, 2015

Mr. Johnson (for himself and Ms. Ayotte) introduced the following bill; 
which was read twice and referred to the Committee on Homeland Security 
                        and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
 To provide appropriate protections to probationary Federal employees, 
to provide the Special Counsel with adequate access to information, to 
provide greater awareness of Federal whistleblower protections, and for 
                            other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Dr. Chris 
Kirkpatrick Whistleblower Protection Act of 2015''.
    (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. Whistleblower protections for probationary employees.
Sec. 103. Adequate access of Special Counsel to information.
Sec. 104. Removal or demotion of employees based on retaliation against 
                            whistleblowers.
Sec. 105. Suicide by executive branch employees.
Sec. 106. Access to medical files.
Sec. 107. Training for supervisors.
Sec. 108. Information on whistleblower protections.
           TITLE II--DEPARTMENT OF VETERANS AFFAIRS EMPLOYEES

Sec. 201. Protecting medical privacy of employees of the Department of 
                            Veterans Affairs.
Sec. 202. Mental health services for 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. DEFINITIONS.

    In this title--
            (1) the term ``Executive agency'' has the meaning given 
        that term under section 105 of title 5, United States Code; and
            (2) the term ``executive branch employee'' means an 
        employee of an Executive agency.

SEC. 102. WHISTLEBLOWER PROTECTIONS FOR PROBATIONARY EMPLOYEES.

    (a) In General.--Section 1214 of title 5, United States Code, is 
amended by adding at the end the following:
    ``(i)(1) In this subsection, the term `covered probationary 
employee' means an individual who--
            ``(A) is an employee in probationary status; and
            ``(B) has submitted to the Special Counsel an allegation of 
        a prohibited personnel practice described in paragraph (8) or 
        subparagraph (A)(i), (B), (C), or (D) of paragraph (9) of 
        section 2302(b) with respect to the individual.
    ``(2) Not later than 10 days after the date on which an agency 
terminates a covered probationary employee, the Special Counsel shall 
determine whether a substantial likelihood exists that--
            ``(A) the agency engaged in the prohibited personnel 
        practice alleged by the covered probationary employee, as 
        described in paragraph (1)(B); and
            ``(B) the termination of the covered probationary employee 
        was related to that prohibited personnel practice.
    ``(3)(A) If the Special Counsel determines there is a substantial 
likelihood the circumstances described in paragraph (2) exist, the 
Special Counsel shall request and the Merit Systems Protection Board, 
without further proceedings, shall order a stay of the termination for 
60 days for the Special Counsel to complete an investigation of the 
termination of the covered probationary employee.
    ``(B) If, before the end of the 60-day period described in 
subparagraph (A), the Special Counsel determines that additional 
investigation is warranted, the Special Counsel shall request and the 
Merit Systems Protection Board, without further proceedings, shall 
order a stay of the termination for such period as the Special Counsel 
determines appropriate, which may not exceed an additional period of 6 
months.
    ``(4)(A) If the Special Counsel determines that the agency 
employing a covered probationary employee engaged in the prohibited 
personnel practice alleged by the covered probationary employee, as 
described in paragraph (1)(B), and the termination of the covered 
probationary employee was related to that prohibited personnel 
practice, the Special Counsel shall request and the Merit Systems 
Protection Board, without further proceedings, shall order the 
reinstatement of the covered probationary employee.
    ``(B) If the Special Counsel determines that the agency employing a 
covered probationary employee did not engage in the prohibited 
personnel practice alleged by the covered probationary employee, 
described in paragraph (1)(B), or that the termination of the covered 
probationary employee was not related to that prohibited personnel 
practice, the Special Counsel shall request and the Merit Systems 
Protection Board, without further proceedings, shall order the 
immediate enforcement of the termination.
    ``(C) An order reinstating a covered probationary employee may be 
appealed by the agency to the Merit Systems Protection Board under 
section 7701.
    ``(5) If a stay is granted to a covered probationary employee under 
paragraph (3) or a covered probationary employee is reinstated under 
this subsection, the head of the agency employing the covered 
probationary employee shall give priority to a request for a transfer 
submitted by the covered probationary employee.''.
    (b) Individual Right of Action.--Section 1221 of title 5, United 
States Code, is amended by adding at the end the following:
    ``(k)(1) In this subsection, the term `covered probationary 
employee' has the meaning given that term under section 1214(i)(1).
    ``(2) In this section, the term `employee' includes a covered 
probationary employee who is terminated, including for purposes of 
seeking a stay under subsection (c).
    ``(3) If the Merit Systems Protection Board grants a stay to a 
covered probationary employee under subsection (c), the head of the 
agency employing the covered probationary employee shall give priority 
to a request for a transfer submitted by the covered probationary 
employee.''.
    (c) 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 relating to a disclosure by the employees of 
information described in section 2302(b)(8) of title 5, United States 
Code, by the employees.

SEC. 103. ADEQUATE ACCESS OF SPECIAL COUNSEL TO INFORMATION.

    Section 1212(b) of title 5, United States Code, is amended by 
adding at the end the following:
    ``(5)(A) The Special Counsel, in carrying out this subchapter, is 
authorized to--
            ``(i) have access to all records, reports, audits, reviews, 
        documents, papers, recommendations, or other material available 
        to the applicable agency which relate to a matter within the 
        jurisdiction or authority of the Special Counsel; and
            ``(ii) request from any agency such information or 
        assistance as may be necessary for carrying out the duties and 
        responsibilities of the Special Counsel under this subchapter.
    ``(B) Upon request of the Special Counsel for information or 
assistance under subparagraph (A)(ii), the head of the agency involved 
shall, insofar as is practicable and not in contravention of any 
existing statutory restriction or regulation of the agency from which 
the information or assistance is requested, furnish to the Special 
Counsel such information or assistance.''.

SEC. 104. REMOVAL OR DEMOTION OF EMPLOYEES 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. Removal or demotion of employees based on retaliation 
              against whistleblowers
    ``(a) Definition.--In this section, the term `retaliation against a 
whistleblower' means a prohibited personnel practice described in 
paragraph (8) or subparagraph (A)(i), (B), (C), or (D) of paragraph (9) 
of section 2302(b).
    ``(b) Removal or Demotion.--
            ``(1) In general.--The head of an agency may remove or 
        demote an employee of the agency if the head of the agency 
        determines that the employee retaliated against a 
        whistleblower.
            ``(2) Imposition of action.--If the head of an agency 
        removes or demotes an employee under this section, the head of 
        the agency may--
                    ``(A) remove the employee from the civil service; 
                or
                    ``(B) demote the employee by means of--
                            ``(i) a reduction in grade for which the 
                        employee is qualified and that the head of the 
                        agency determines is appropriate; or
                            ``(ii) a reduction in annual rate of pay 
                        that the head of the agency determines is 
                        appropriate.
    ``(c) Pay of Certain Demoted Employees.--
            ``(1) In general.--Notwithstanding any other provision of 
        law, any employee subject to a demotion under subsection 
        (b)(2)(B)(i) shall, beginning on the date of the demotion, 
        receive the annual rate of pay applicable to the applicable 
        grade.
            ``(2) Appeal.--An employee demoted under subsection 
        (b)(2)(B)(i) may not be placed on administrative leave or any 
        other category of paid leave during the period during which an 
        appeal (if any) under this section is ongoing.
            ``(3) Failure to report.--An employee demoted under 
        subsection (b)(2)(B)(i)--
                    ``(A) may only receive pay if the employee reports 
                for duty; and
                    ``(B) if the employee does not report for duty, 
                shall not receive pay or other benefits described in 
                subsection (f)(5).
    ``(d) Notice to Congress.--Not later than 30 days after removing or 
demoting an employee under subsection (b), the head of an agency shall 
submit to each committee of Congress with jurisdiction of the 
activities of the agency notice in writing of the removal or demotion 
and the reason for the removal or demotion.
    ``(e) Procedure.--
            ``(1) In general.--The procedures under section 7513(b) and 
        chapter 43, shall not apply to a removal or demotion under this 
        section.
            ``(2) Appeal.--
                    ``(A) In general.--Subject to subparagraph (B) and 
                subsection (f), any removal or demotion under 
                subsection (b) may be appealed to the Merit Systems 
                Protection Board under section 7701.
                    ``(B) Time for making an appeal.--An appeal under 
                subparagraph (A) of a removal or demotion may only be 
                made if the appeal is made not later than 7 days after 
                the date of the removal or demotion.
    ``(f) Expedited Review by Administrative Law Judge.--
            ``(1) In general.--Upon receipt of an appeal under 
        subsection (e)(2)(A), the Merit Systems Protection Board shall 
        refer the appeal to an administrative law judge under section 
        7701(b)(1), who shall expedite the appeal and issue a decision 
        not later than 45 days after the date of the appeal.
            ``(2) Finality of decision.--Notwithstanding any other 
        provision of law, including section 7703, the decision of an 
        administrative law judge under paragraph (1) shall be final and 
        shall not be subject to any further appeal.
            ``(3) Delay in decision.--If an administrative law judge 
        cannot issue a decision before the end of the 45-day period 
        described in paragraph (1)--
                    ``(A) the removal or demotion is final; and
                    ``(B) not later than 14 days after the end of the 
                45-day period, the Merit Systems Protection Board shall 
                submit to each committee of Congress with jurisdiction 
                of the activities of the applicable agency a report 
                that explains the reasons why a decision was not issued 
                during the period.
            ``(4) No stays.--The Merit Systems Protection Board or 
        administrative law judge may not stay any removal or demotion 
        under this section.
            ``(5) No pay or benefits during pending appeal.--During the 
        period beginning on the date on which an employee appeals a 
        removal from the civil service under subsection (e) and ending 
        on the date that the administrative law judge issues a final 
        decision on the appeal, the employee may not receive any pay, 
        awards, bonuses, incentives, allowances, differentials, student 
        loan repayments, special payments, or benefits.
            ``(6) Assistance by agency.--To the maximum extent 
        practicable, the head of an agency shall provide to the Merit 
        Systems Protection Board, and to any administrative law judge 
        to whom an appeal under this section is referred, such 
        information and assistance as may be necessary to ensure an 
        appeal under this subsection is expedited.
    ``(g) Limitation on Removal or Demotion.--If an employee seeking 
corrective action (or on behalf of whom corrective action is sought) 
from the Office of Special Counsel based on an alleged prohibited 
personnel practice, the head of an agency may not remove or demote the 
employee under subsection (b) without the approval of the Special 
Counsel under section 1214(f).
    ``(h) Relation to Other Provisions of Law.--
            ``(1) Additional authority.--The authority provided by this 
        section is in addition to any authority provided under this 
        chapter or chapter 43.
            ``(2) Not subject to other provisions.--The requirements 
        under any other provision of this chapter shall not apply to 
        any action under this section.''.
    (b) Technical and Conforming Amendments.--
            (1) The table of sections for subchapter II of chapter 75 
        of title 5, United States Code, is amended by adding at the end 
        the following:

``7515. Removal or demotion of employees based on retaliation against 
                            whistleblowers.''.
            (2) Section 4303(f) of title 5, United States Code, is 
        amended--
                    (A) by striking ``or'' at the end of paragraph (2);
                    (B) by striking the period at the end of paragraph 
                (3) and inserting ``, or''; and
                    (C) by adding at the end the following:
            ``(4) any removal or demotion under section 7515.''.

SEC. 105. SUICIDE BY EXECUTIVE BRANCH EMPLOYEES.

    (a) Referral.--The head of the Executive agency employing an 
executive branch employee who commits suicide shall refer the matter to 
the Inspector General of the Executive agency, or senior ethics 
official of the Executive agency for an Executive agency without an 
Inspector General, to determine whether the suicide of the executive 
branch employee was work-related.
    (b) Information to Next of Kin.--
            (1) In general.--Subject to paragraph (2), the head of the 
        Executive agency employing an executive branch employee who 
        commits suicide shall provide the personnel file of the 
        Executive agency to the next of kin of the executive branch 
        employee.
            (2) National security exception.--The head of an Executive 
        agency may withhold information in a personnel file under 
        paragraph (1) if the head determines the disclosure of the 
        information would likely compromise national security.

SEC. 106. ACCESS TO MEDICAL FILES.

    (a) In General.--Except for an emergency situation, an executive 
branch employee may not access the medical record of another executive 
branch employee, unless the executive branch employee whose medical 
record will be accessed provides consent to the access.
    (b) Emergency Situations.--The Director of the Office of Management 
and Budget shall promulgate regulations defining the term ``emergency 
situation'' for purposes of this section.

SEC. 107. TRAINING FOR SUPERVISORS.

    The head of each Executive agency shall provide training regarding 
how to respond to complaints alleging a violation of whistleblower 
protections available to executive branch employee of the Executive 
agency to--
            (1) executive branch employees appointed to supervisory 
        positions in the Executive agency who have not previously 
        served as a supervisor; and
            (2) on an annual basis, to all executive branch employees 
        of the Executive agency serving in a supervisory position.

SEC. 108. INFORMATION ON WHISTLEBLOWER PROTECTIONS.

    (a) In General.--Chapter 23 of title 5, United States Code, is 
amended by adding at the end the following:
``Sec. 2307. Information on whistleblower protections
    ``(a) Definitions.--In this section--
            ``(1) the term `new employee' means an individual--
                    ``(A) appointed to a position as an employee on or 
                after the date of enactment of the Dr. Chris 
                Kirkpatrick Whistleblower Protection Act of 2015; and
                    ``(B) who has not previously served as an employee; 
                and
            ``(2) the term `whistleblower protections' means--
                    ``(A) the protections against and remedies for a 
                prohibited personnel practice described in paragraph 
                (8) or subparagraph (A)(i), (B), (C), or (D) of 
                paragraph (9) of section 2302(b); and
                    ``(B) similar protections for an employee under any 
                other provision of law.
    ``(b) Information for New Hires.--The head of each agency or other 
establishment in the Federal Government shall provide each new employee 
of the agency or establishment information regarding the whistleblower 
protections available to the new employee and the role of the Office of 
Special Counsel.
    ``(c) Information Online.--The head of each agency or other 
establishment in the Federal Government shall make available 
information regarding whistleblower protections applicable to employees 
of the agency or other establishment on any online portal that is made 
available only to employees of the agency or other establishment.''.
    (b) 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. PROTECTING MEDICAL PRIVACY OF EMPLOYEES OF THE DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) In General.--Chapter 7 of title 38, United States Code, is 
amended by adding at the end the following new section:
``Sec. 714. Accessing of medical records of employees
    ``(a) Notice of Access.--(1) Not later than five days after an 
employee of the Department accesses the medical record of another 
employee of the Department, the Secretary shall notify the such other 
employee of such access.
    ``(2) Notice under paragraph (1) shall include the following:
            ``(A) The name of the employee accessing the medical 
        record.
            ``(B) The date and time the employee accessed the medical 
        record.
            ``(C) The period during which the employee accessed the 
        medical record.
            ``(D) A description of any modification of the medical 
        record made by the employee.
    ``(b) Determination of Prohibited Access.--(1) If an employee of 
the Department receives notice under subsection (a) that a medical 
record of the employee was accessed by another employee of the 
Department and the employee believes that such access was conducted in 
violation of an applicable provision of Federal privacy law, the 
employee shall file a complaint with the Office of Accountability 
Review.
    ``(2) If the Office of Accountability Review receives a complaint 
from an employee with respect to a notice that the employee received 
under subsection (a) not more than 45 days after the notice was 
transmitted to the employee, the Office of Accountability Review shall, 
not later than 30 days after receiving such complaint--
            ``(A) determine whether the access identified in the notice 
        was conducted in violation of an applicable provision of 
        Federal privacy law; and
            ``(B) notify the employee of the determination.
    ``(c) Action in Response to Unauthorized Access.--(1) If the Office 
of Accountability Review determines that an employee of the Department 
has accessed the medical record of another employee of the Department 
in violation of an applicable provision of Federal privacy law, the 
Secretary shall--
            ``(A) for the first such access, issue an order that, for 
        the two-year period beginning on the date of the order, the 
        employee is not eligible to receive any bonus or cash award 
        from the Department, including--
                    ``(i) an award under chapter 45 of title 5;
                    ``(ii) an award under section 5384 of title 5; and
                    ``(iii) a retention bonus under section 5754 of 
                title 5;
            ``(B) for the second such access, suspend the employee for 
        not less than 14 days; and
            ``(C) for the third such access, terminate the employee.
    ``(2) Any action under paragraph (1)--
            ``(A) shall be taken in accordance with chapter 75 of title 
        5; and
            ``(B) may be appealed to the Merit Systems Protection Board 
        under section 7701 of title 5.
    ``(d) Applicable Provision of Federal Privacy Law Defined.--In this 
section, the term `applicable provision of Federal privacy law' 
includes the following:
            ``(1) The Federal regulations (concerning the privacy of 
        individually identifiable health information) promulgated under 
        section 264(c) of the Health Insurance Portability and 
        Accountability Act of 1996.
            ``(2) Section 552a of title 5 (commonly known as the 
        `Privacy Act of 1974').''.
    (b) Technical and Conforming Amendment.--The table of sections for 
chapter 7 of title 38, United States Code, is amended by adding at the 
end the following new item:

``714. Accessing of medical records of employees.''.

SEC. 202. MENTAL HEALTH SERVICES FOR EMPLOYEES OF THE DEPARTMENT OF 
              VETERANS AFFAIRS.

    (a) Outreach on Availability of Services.--The Secretary of 
Veterans Affairs shall conduct a program of outreach to employees of 
the Department of Veterans Affairs to inform them of the mental health 
services available to them.
    (b) Study on Use of Mental Health Professionals of the Department 
To Provide Services to Employees.--
            (1) In general.--The Secretary of Veterans Affairs shall 
        conduct a study to assess the feasibility of using mental 
        health professionals who provide mental health services for the 
        Department of Veterans Affairs to provide mental health 
        services to employees of the Department.
            (2) Report.--Upon completion of the study required by 
        paragraph (1), the Secretary shall submit to Congress a report 
        on the findings of the Secretary with respect to the study.

SEC. 203. PROTOCOLS TO ADDRESS THREATS AGAINST EMPLOYEES OF THE 
              DEPARTMENT OF VETERANS AFFAIRS.

    The Secretary of Veterans Affairs shall develop protocols 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. 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, accountability, and chain of command structure 
of the Department of Veterans Affairs police officers at medical 
centers of the Department.
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