Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
At a time when employers are struggling to stay current with ever-changing COVID-19 laws and public health orders, Colorado has enacted a new Public Health Emergency Whistleblower (PHEW) law on the heels of its sweeping new paid sick leave law under the Healthy Families and Workplaces Act (HFWA). Broadly speaking, the PHEW law creates new claims for COVID-19 workplace “COPs” who: (1) raise Concerns about perceived health threats or violations of the myriad, complex, and ever-changing state and local COVID-19 public health orders; (2) engage in Opposition to conduct made unlawful by the PHEW law; or (3) Participate in protected activity under the PHEW law.1
PHEW’s Protection for Safety-Related Workplace Speech
Effective immediately when signed on July 11, 2020, Colorado’s PHEW law, House Bill 20-1415, creates a new claim for adverse action, discrimination, or retaliation against “workers” who, in good faith, raise “any reasonable concern about workplace violations of government health or safety rules, or an otherwise significant workplace threat to health or safety, related to a public health emergency.” Thus, protected concerns include not only perceived violations of state and local public health orders, but also any perceived threat to health or safety in addition to the numerous (and constantly shifting) requirements in those public health orders.
Moreover, a protected concern may be raised to a “principal, principal’s agent, other workers, a government agency, or the public if the principal controls the workplace conditions giving rise to the threat or violation.” As a result, the PHEW law protects “traditional” complaints to an employer, manager, or human resources representative, as well as complaints to coworkers or public statements about perceived violations or threats to health or safety. While a principal would likely need to have knowledge of such complaint to permit an actionable claim, it is now possible that an offhand instant message to a coworker or public Twitter post could result in protection for the worker under the PHEW law.
To provide some clarity on the potentially enormous scope of the PHEW law, the Division of Labor Standards and Statistics (Division) has issued Interpretive Notice & Formal Opinion (INFO) # 5. INFO #5 clarifies that the principal is not required to agree with or act on “incorrect” concerns. Rather, the PHEW law mandates only that the principal “cannot fire or otherwise act against the worker for raising that concern (for example, with a demotion, discipline, a cut in pay or hours, or an undesired transfer or shift change).” Moreover, much like well-established defamation law, the PHEW law protections do not apply if the concerns raised are: (1) known to be false or (2) made with reckless disregard of truth or falsity. A worker also cannot share individual health information otherwise prohibited from disclosure under federal or state law, which would include information protected by the Health Insurance Portability and Accountability Act (HIPAA) and Americans with Disabilities Act.
Once a concern is raised, however, the PHEW law further provides that a principal may not discriminate, retaliate, or take adverse action against any worker opposing any practice the worker reasonably believes is unlawful under the PHEW law. A principal also may not discriminate, retaliate, or take adverse action against any worker who makes a charge, testifies, assists, or participates in any manner in an investigation, proceeding, or hearing for which the worker reasonably believes involves unlawful action under the PHEW law.
As a result, the PHEW law protects not only those who raise a concern, but also those who may join in opposition to the perceived unlawful practice, or who participate in a resulting investigation of a concern raised.
PHEW’s Remix of OSH Act Section 11(c) and NLRA Section 7
At first blush, the PHEW law appears in many respects to echo and amalgamate existing federal protections under Section 11(c) of the Occupational Safety and Health Act of 1970 (OSH Act)2 and Section 7 of the National Labor Relations Act (NLRA).3 Generally speaking, Section 11(c) of the OSH Act protects those who raise a concern about occupational safety or health and are subject to an unfavorable employment action. Section 7 of the NLRA protects employees, union and non-union, who engage in protected concerted activity for mutual aid and protection, including complaints about workplace safety affecting others or brought on behalf of others.
But the PHEW law goes further than both of these federal statutes. While Section 11(c) and Section 7 are limited to employees, the Colorado PHEW law extends protection to independent contractors. The PHEW law applies to all “principals,” which specifically include employers within the meaning of section 8-4-101(6), C.R.S.,4 the state of Colorado and political subdivisions generally immune from suit, and any entity “that contracts with five or more independent contractors in the state each year.”
The PHEW law also provides its own remedies both for the Division investigating claims and for those workers suing in court. Under the PHEW law a worker may seek:
- reinstatement, with or without back pay;
- the greater of $10,000.00 or lost pay from the violation, including back pay and front pay;
- compensatory damages for emotional distress or other pecuniary or non-pecuniary losses;
- punitive damages, if clear and convincing evidence shows malice or reckless indifference by the principal;5 and
- the worker’s attorneys’ fees.
Furthermore, in determining the appropriate level of damages for a plaintiff alleging intentional conduct by the principal, the PHEW law states that a court shall consider the size and assets of the principal, as well as the egregiousness of the action.
The PHEW law also specifically authorizes qui tam actions on behalf of the state of Colorado. Statutes authorizing qui tam actions “are quite uncommon,” and the U.S. Supreme Court has previously indicated that there are fewer than five clear qui tam statutes in the entirety of the United States Code.6 A qui tam action is essentially an action in which a private litigant functions as a private attorney general who sues on behalf of a government entity, and most frequently arises under the federal False Claims Act, 31 U.S.C. § 3730(b).7 In such an action, the individual bringing the claim on behalf of the state, known as a “relator,” may recover some portion of the relator’s own damages, but also recovers on behalf of the government. Under the PHEW law, a relator may recover between $100.00 and $1,000.00 per violation, as well as attorneys’ fees, although a recovery of any amount beyond attorneys’ fees is allocated 75% to the Division and 25% to the worker. Notably, the qui tam provision also provides that such actions “shall be tried promptly, without regard to concurrent adjudication of private claims.” Thus, employers could be facing dual-front litigation on an expedited qui tam claim while private claims also move forward.
But whether a private or qui tam action, claims must first be exhausted with the Division within two years of an alleged violation. If the Division proceeds with the claim, it is authorized to award fines under existing section 8-1-140, C.R.S., in addition to the remedies above. If it finds that the rights of multiple workers have been violated, each worker is considered a separate violation for fines, penalties, or other remedies.
Even so, the Division’s own INFO # 5 makes clear that “PHEW and other laws don’t require the Division to investigate all retaliation or interference claims.” Rather, “in light of the Division’s resources and other workload,” it may simply authorize suit without any investigation or jurisdictional time limit pre-suit. As a result, the administrative exhaustion requirement is likely to be no more than a formality, and the influx of litigation in court is likely to be significant.
PHEW’s Protection for Do-It-Yourself PPE
The PHEW law also separately addresses the use of a worker’s own Personal Protective Equipment (PPE). It states that an employer may not discriminate, retaliate, or take adverse action against a worker for wearing the worker’s own PPE, mask, faceguard, or gloves, if such equipment provides a higher level of protection than that provided by the principal. Of course, the PPE must still be within the guidelines recommended by a federal, state, or local public agency.
The PHEW law also provides an exception if the use of the worker’s own PPE renders the worker incapable of performing the job. While the immediate application of this exception appears narrow, as face coverings are now mandated in public facilities throughout Colorado, there are potentially broad applications. For instance, if an employee wants to use a half-face or full-face respirator, OSHA guidelines could require that the employer adopt a formal respiratory protection program and engage in fit testing to ensure that the respirator is safe for use. Additional rulemaking by the Division is necessary before the full scope of the exception will be well understood.
PHEW’s Prohibition of Safety-Related Confidentiality Clauses
Colorado’s new PHEW law also addresses contracts, agreements, and policies related to workplace speech about health and safety practices. It makes clear that an employer “shall not require or attempt to require” a worker to sign a contract or agreement, or otherwise abide by a workplace policy, that would limit or prevent a worker from disclosing workplace health and safety practices or hazards related to a public health emergency. In fact, the PHEW law states that not only is such an agreement or policy void and unenforceable, but that attempting to impose such a contract or agreement is itself an adverse employment action.
To be sure—and as the Division confirms in INFO # 5—the PHEW law’s prohibition would not affect otherwise valid agreements or policies requiring non-disclosure or confidentiality, such as existing confidentiality agreements, confidentiality clauses in severance or settlement agreements, or policies relating to workplace speech or social media usage.
But to the extent any such agreement or policy potentially sweeps within its ambit the disclosures protected by the PHEW law, principals should consider revisions before implementing them with any new worker, or before enforcing any such agreement or policy. In fact, because the PHEW law states that a private contract may not impair the right to bring an action under the PHEW law, all agreements containing broad releases of claims may benefit from a carve-out for reports made under the PHEW law.
PHEW’s Required Workplace Posters
Finally, the PHEW law also imposes an immediate notice requirement. Principals must post a notice in a conspicuous location on the principal’s premises where it is accessible to workers, and shared with remote workers electronically or on paper. The Division has already issued a form poster that applies to both the HFWA and the PHEW.
The new PHEW law provides a number of new requirements and immediate action items for principals already struggling to keep up with an ever-increasing list of COVID-19-related mandates.
To ensure compliance, principals should consider:
- Reviewing existing policies, handbooks, and confidentiality agreements to make necessary changes to ensure they are compliant with the PHEW law;
- Developing policies addressing the use of worker PPE consistent with the PHEW law;
- Training supervisors, managers, and human resources professionals on the process to address concerns raised by workers related to workplace health and safety arising from COVID-19-related guidance and public health orders;
- Posting the required notices under the PHEW law, and emailing or mailing them to remote employees;
- Being cognizant of other federal, state, and local anti-retaliation provisions that may apply to employees who have voiced concerns about workplace safety during the COVID-19 pandemic.
1 In fact, the PHEW law appears to codify earlier guidance from the Colorado Department of Labor and Employment on employee reports of COVID-19-related safety concerns, which addressed refusals to return to work by those who feel unsafe and directed those affected to the federal Occupational Safety and Health Administration or county health officials.
2 29 U.S.C. § 660(c).
3 29 U.S.C. § 157.
4 Consistent with Divisions INFO # 5, this includes the categories for employers under Fair Labor Standards Act § 203(d) and “foreign labor contractor and migratory filed labor contractors.”
5 Note that punitive damages are not available if the principal made good-faith efforts to comply with the new law.
6 See Woods v. Empire Health Choice, Inc., 574 F.3d 92, 98 (2d Cir. 2009); Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 769 n.1 (2000).
7 "Qui tam is short for the Latin phrase qui tam pro domino rege quam pro se ipso in hac parte sequitur, which means ‘who pursues this action on our Lord the King's behalf as well as his own.’ The phrase dates from at least the time of Blackstone." Vt. Agency, 529 U.S. at 769.