What You Need to Know about PHEW

While keeping up with all things COVID-19, you may have missed a new Colorado law called the Public Health Emergency Whistleblower law (PHEW).

PHEW became effective on July 11, 2020. It covers virtually all private employers, state and local governments and political subdivisions of the state, and businesses that contract with five or more independent contractors in the state.

The definition of covered workers includes public and private sector employees and independent contractors if the business contracts with five or more total independent contractors in the state annually.

PHEW protects workers who, in good faith, raise 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. If the worker’s complaint is found to be incorrect, an employer or business need not take action on it, and cannot retaliate against the worker as long as the complaint was reasonable and made in good faith.

PHEW prohibits taking adverse action or retaliating against workers who choose to wear their own personal protective equipment (PPE) to work such as a mask, faceguard, or gloves if the PPE:

  • Provides a higher level of protection than the equipment provided by the employer or business;
  • Is recommended by a federal, state, or local public health agency with jurisdiction over the workplace; and
  • Does not render the worker incapable of performing their job or any job duties.

Finally, PHEW protects workers who oppose any practice they reasonably believe to be unlawful or for making a charge, testifying, assisting, or participating in an investigation, proceeding, or hearing on the alleged unlawful practice. This protection is lost to workers who disclose information they either know to be false or act with reckless disregard for the truth or falsity of the information.

Covered employers and businesses must post this notice of worker’s rights under PHEW on their premises.

Workers must send a written demand of their complaint and give the employer or business 14 days to respond. Workers must file complaints with the Colorado Department of Labor and Employment (CDLE) before filing a lawsuit. If the CDLE decides not to investigate and decide the worker’s claim itself, the worker can go on to court. Either a worker or an employer or business can appeal a CDLE decision that they disagree with.

The bottom line on PHEW is to listen to your workers’ safety concerns and investigate and address them as appropriate.