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In July 2020, during the height of the COVID-19 pandemic, Colorado enacted the Public Health Emergency Whistleblower law (PHEW), permitting workers to file claims of workplace health or safety concerns related to a public health emergency with the Colorado Department of Labor and Employment (CDLE).

At the time of its passing, PHEW protected workers who raised concerns about workplace violations of government health or safety rules or an otherwise significant workplace threat to health or safety related to COVID-19. An employer was not required to take action on a worker’s concern if the complaint was found to be incorrect. However, the worker was engaged in protected activity if the complaint was reasonable and made in good faith. 

On May 31, 2022, Governor Jared Polis signed Senate Bill 22-097 into law, which amended PHEW, removing the requirement that such claims must arise during a public health emergency. PHEW is now formally known as the Protected Health/Safety Expression and Whistleblowing law. 

The removal of the requirement that claims must specifically arise during a public health emergency may seem like a minor change to the statutory language of PHEW, but the amendment significantly expands employee whistleblower protections in Colorado. PHEW has now been broadly expanded to protect any alleged violation of a health or safety rule, regulation, or other significant health or safety threat a worker brings to an employer’s attention, as long as the employee’s belief was reasonable and in good faith. 

The scope of PHEW goes beyond the federal retaliation protections provided under the Occupational Safety and Health (OSH) Act, which prohibits covered employers from retaliating against employees for exercising a variety of rights, such as filing a safety or health complaint with the Occupational Safety and Health Administration (OSHA) or reporting a work-related injury or illness. For instance, PHEW protects “workers,” extending protections to include independent contractors; employers with at least five independent contractors are covered under PHEW.

PHEW requires that employers provide workers with a notice of their whistleblowing rights. Employers must post the CDLE’s Colorado Workplace Public Health Rights Poster, which is updated annually, or their own poster with the same substantive information as the CDLE’s poster. 

Workers can file a complaint of retaliation or interference regarding their PHEW rights with the CDLE within two years of the alleged violation. Successful claims can subject employers to penalties of back and future wages, reinstatement, and/or fines for non-compliance.

Now, more than ever, employers should listen to workers' safety concerns and address them appropriately. To start, employers should have a clearly communicated and documented policy that instructs workers on how to make a safety complaint. Employers should train those receiving complaints on how to respond. The employer should document and investigate complaints and not take adverse action against the worker before speaking with employment counsel. Finally, the employer should take any corrective action necessary to abate the unsafe condition and follow up with the complainant on the resolution of their complaint. Please email the Employers Council Member Experience team if you have any questions.