Colorado Enacts the Public Health Emergency Whistleblower Law
By Aaron Chaet
On July 11, 2020, Colorado enacted the Public Health Emergency Whistleblower Law (“PHEW”), which was effective immediately. PHEW is intended to protect employees and independent contractors from discrimination and retaliation for raising safety and health concerns related to a public health emergency.FN1 PHEW also provides protections to workers who intend on wearing their own personal protective equipment (“PPE”).FN2
Under PHEW, principalsFN3 are prohibited from retaliating against workers, which are defined as employees or independent contractors, who raise reasonable concerns “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.”FN4 Under PHEW, employees and independent contractors are also protected from retaliation for “opposing any practice [they] reasonably believe is unlawful” as well as “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.”FN5
Notably, employees and independent contractors are protected even if they are incorrect about the violation if their concern was “reasonable” and in “good faith.”FN6 Employees, however, are not protected if they knew that the 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.FN7
Principals are not required to agree with or act on employees’ concerns if they are incorrect. Rather, principals are prohibited from engaging in unlawful retaliation such as termination, reduced hours, demotion, or undesirable shifts.
Under PHEW, workers are also entitled to wear their own PPE, such as masks, gloves, faceguards, at their places of work if the workers’ PPE (1) provides greater protection than the PPE provided by the principal, (2) the PPE is recommended by federal, state, or local public health agencies with jurisdiction over the principal, and (3) the PPE does not render the worker incapable of performing the worker’s job or prevent the worker from fulfilling the duties of their position.FN8
Penalties for violating PHEW include, but are not limited to, lost pay, reinstatement, and/or fines or penalties for non-compliance.FN9
Finally, by July 15, 2020, principals must post a notice of workers’ rights under PHEW in a conspicuous location and shared with remote workers electronically.FN10
Takeaway
Colorado employers should be cognizant of workers’ complaints regarding safety and health concerns related to COVID-19 and other public health emergencies. Even if the workers’ concerns are not correct, they are still entitled to protection from retaliation if they were reasonable and in good faith. Additionally, workers may be permitted to use their own PPE in certain circumstances. Please contact the attorneys at Campbell Litigation to further discuss workers’ protections under PHEW.
Footnotes:
FN1 – C.R.S. § 8-14.4-101, et seq.; House Bill 20-1415.
FN2 – Id.
FN3 – Under the statute, Principals includes employers as defined by the Colorado Wage Act, entities that contract with five or more independent contractors, and any state or local government employers. C.R.S. § 8-14.4-101(3).
FN4 – C.R.S. § 8-14.4-102(1).
FN5 – C.R.S. § 8-14.4-102(4).
FN6 – C.R.S. § 8-14.4-102(1).
FN7 – C.R.S. § 8-14.4-102(5).
FN8 – C.R.S. § 8-14.4-102(3).
FN9 – C.R.S. 8-14.4-105, 106.
FN10 – The notice may be found at the Colorado Department of Labor’s website: https://www.colorado.gov/pacific/sites/default/files/Poster%2C%20Paid%20Leave%20%26%20Whistleblower.pdf