Worker Protections Under Colorado’s New Public Health Emergency Whistleblower Law

Worker Protections Under Colorado’s New Public Health Emergency Whistleblower Law
04 Aug 2020

Effective July 11, 2020, the Public Health Emergency Whistleblower (“PHEW”) law provides workers with protections from discrimination or retaliation for raising safety or health concerns related to a public health emergency. PHEW also protects workers who choose to wear their own personal protective equipment.

PHEW broadly covers all “workers” for any “principal,” meaning that it protects employees as well as certain independent contractors. “Worker” is defined to include all employees and any person “who works for an entity that contracts with five or more independent contractors” in Colorado each year. “Principal” includes: (1) an employer; (2) “a foreign labor contractor and a migratory field labor contractor or crew leader”; (3) all state and local governments; and (4) any “entity that contracts with five or more independent contractors” in Colorado each year. “Public health emergency” means “a public health order issued by a state or local public health agency” or “a disaster emergency declared by the governor based on a public health concern.”

PHEW prohibits principals from discriminating, retaliating, or taking adverse action against the following worker activities:

  • Raising (in good faith) any reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency. Principals are only responsible for workplace conditions under its control and concerns must be made to the principal, the principal’s agent, other workers, a governmental agency, or the public.

  • Voluntarily wearing at work the worker’s own personal protective equipment, such as a mask, faceguard, or gloves, if the personal protective equipment: (1) provides a higher level of protection than the equipment provided by the principal; (2) is recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace; and (3) does not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of the worker’s position.

  • Opposing any practice the worker reasonably believes is unlawful under PHEW.

  • Making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing as to any matter the worker reasonably believes to be unlawful under PHEW.

Workers are not protected if they knew their claims were “knowingly false,” made with “reckless disregard for the truth or falsity of the information,” or involved the disclosure of individual health information that is otherwise prohibited by state or federal law.  While principals (employers) are not required to correct, or agree with issues, raised by workers, PHEW prohibits them from taking adverse action against such workers in response to raising such concerns.

Further, any non-disclosure or confidentiality agreements restricting any protected activities are void and unenforceable as a matter of public policy. An otherwise valid agreement or policy requiring non-disclosure or confidentiality shall not require or attempt to require that a worker refrain from disclosing information about workplace health and safety practices or hazards related to a public health emergency.

Workers may seek relief for a violation by filing a complaint with the Colorado Department of Labor & Employment, bringing an action in district court after exhausting administrative remedies or bringing a whistleblower action in the name of the state after exhausting administrative remedies. Penalties for violating PHEW include, but are not limited to, lost pay, reinstatement, and/or fines or penalties for non-compliance.

PHEW requires all principals to post notice of a worker’s rights in a conspicuous location on the principal’s premises.  The Colorado Division of Labor and Employment has published guidance regarding PHEW and a copy of the required poster.

What is written here is intended as general information and is not to be construed as legal advice. If legal advice is needed, you should consult an attorney.

Josephine B. Reid Michelle B. FergusonFor more information or if you would like help updating your employee handbook or paid leave policies, contact employment law attorney Michelle B. Ferguson at 303-628-3658 or mferguson@irelandstapleton.com or employment law attorney Josephine B. Reid at 303-628-3674 or jreid@irelandstapleton.com.