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In a recent decision out of the U.S. District Court for the District of Colorado, employers are reminded of the importance of taking seriously and addressing employee complaints related to public health and safety violations. Mitchell v. Southern Health Partners, Inc., 2023 WL 6690650 (D. Colo. Oct. 12, 2023), involved a former nurse at the La Plata County Jail who sued Southern Health Partners (SHP) alleging violations of Colorado’s Public Health Emergency Whistleblower law (PHEW).  

PHEW protects employees who raise concerns about workplace violations of public health and safety rules. Employers are prohibited from taking discriminatory, adverse, or retaliatory actions against their employees in response to them asserting or opposing a public health or safety related violation. Employees who engage in protected PHEW activity that experience adverse employment actions can seek relief under the law, including the following: reinstatement with back pay, lost pay, punitive damages, compensatory damages, and attorneys’ fees. 

In this case, Mitchell raised concerns that SHP medical providers violated public health mandates at the jail during the COVID-19 pandemic in June 2020, and subsequently retaliated against her by forcing her to resign after she raised concerns. Mitchell alleged that Colorado’s public health orders related to mask wearing and personal protective equipment were not being followed in the SHP offices located in the jail. She was concerned about working in a small, unventilated office with coworkers who didn’t wear masks, practice social distancing, or comply with other mandated precautions.  

Afterward, Mitchell alleged she was ostracized by her coworkers because they were forced to comply with the public health orders, including wearing masks. Mitchell argued she was treated differently by her supervisor and that she was denied administrative assistance from SHP employees because of her complaints. She further asserted that SHP ignored her concerns, failed to address her coworkers’ retaliatory actions, and changed her work schedule, requiring her to take PTO for previously unscheduled workdays. Additionally, Mitchell alleged she was told by SHP’s medical team administrator she “was going to have to let it go” in response to her concerns about SHP’s practices. Following a three-day suspension without pay, Mitchell resigned and filed a lawsuit against SHP. 

At the District Court, Mitchell successfully argued she engaged in protected activity when she informed her supervisor about the public health violations and that her belief as to those violations was reasonable and made in good faith. Mitchell offered evidence that SHP ignored her concerns about health and safety in the workplace, and she provided evidence of a discriminatory response with respect to changing her work schedule. Ultimately, the District Court determined that Mitchell had provided sufficient evidence to establish that raising concerns about unlawful health and safety practices in the workplace was a motivating factor in the adverse actions taken by SHP, allowing the case to proceed to trial. 

Takeaway for Employers 

This case serves as an important reminder that employers should train their supervisors and managers to recognize and take complaints of public health and safety violations seriously. Last year, Governor Polis signed SB 22-097 into law, which amended PHEW and specifically removed the requirement that such claims involving public health and safety violations arise during a public health emergency. Accordingly, any violation of a health or safety rule, regulation, or other significant health or safety threat that a worker brings to the attention of their employer is considered protected activity so long as the worker's belief was reasonable and in good faith. You can learn more about PHEW in this Employers Council whitepaper. 

If you are a Consulting or Enterprise member and need assistance in handling safety-related whistleblower complaints in the workplace, please reach out to the experienced attorneys at Employers Council for assistance.