Whistleblowing during the COVID-19 Pandemic – Colorado Ramps up Protection from Retaliation for Employees and Independent Contractors

In light of the ongoing concerns regarding COVID-19, it is wise for all Colorado employers to revisit the requirements of a new whistleblower statute enacted by the Colorado legislature in July 2020.  On July 11, 2020, Colorado enacted the Public Health Emergency Whistleblower Law (“PHEW”), which went into effect immediately.  Although it was passed during the first summer of the Coronavirus pandemic, the law applies broadly to any declared “public health emergency” as that term is defined in the Act. PHEW protects employees and independent contractors from discrimination and retaliation for voicing safety and health concerns about public health issues in their workplace.  PHEW also protects workers who prefer to wear their own personal protective equipment (“PPE,”) such as facemasks, faceguards, or gloves, so long as their equipment provides greater protection than the equipment being provided by the employer, is recommended by federal, state or local authorities, and does not prevent the worker from performing her job duties.

If a worker voices his valid concerns regarding the public health issues in the workplace, employers may not implement adverse action against them. This includes termination, demotion, transferring to another location, limiting their work hours, decreasing their pay, taking away job duties, and essentially any action a worker may perceive as unfavorable.  PHEW further provides that if a worker’s complaint about a health concern in the workplace is invalid, the employer is not required to act on or grant the request.  An employer is prohibited from taking adverse action against the worker, so long as the worker’s belief about the health concern was reasonable and made in good faith.  However, workers can face consequences if 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, which is otherwise prohibited by state or federal law.

The first step in initiating a complaint is to submit a complaint in any form to the Division of Labor Standards and Statistics within two years of the alleged violation.  The Division is required to investigate the violation or authorize the employee to proceed with a court action.  The Division may impose fines and award an aggrieved individual attorneys’ fees and other equitable remedies.  It should also be noted that violations of the PHEW act can result in criminal misdemeanor criminal charges against officers, agents, or representatives of a corporation.  If a violation affects multiple workers, it is considered a separate violation as to each worker.  In large places of employment, this can create significant potential exposure for a single public health emergency.

After the administrative process is complete or upon being granted the right to sue, an aggrieved individual may file a lawsuit in state district court.  The plaintiff in such a case may request a trial by jury.  If a violation occurred, the court may award a variety of legal and equitable remedies, including the possibility of compensatory damages, punitive damages, and attorneys’ fees.

Whistleblowers can also bring a qui tam action on behalf of the State of Colorado.  The State may then intervene in the action to prosecute in its own name.  The court in such an action can award between $100 and $1000 per violation and can enter judgment for other appropriate injunctive and equitable relief.  The first whistleblower in such an action is entitled to 25% of the state’s recovery, as well as attorneys’ fees.

To ensure compliance with PHEW, employers should:

1. Review and, if necessary, revise their employment policies, handbooks, manuals, contracts, and confidentiality agreements in order to avoid violations;
2. Train supervisors and their human resource departments on how to address employee concerns regarding safety and health in the workplace arising from COVID-19, the Delta variant, or other public health issues;
3. Develop policies to allow for the use of PPE, or making such equipment available to employees and independent contractors; and
4. Work with qualified legal counsel to ensure continued compliance.