INFO #5 clarifies that the principal is not required to agree with or act on “incorrect” concerns. 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. 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.

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. PHEW’s Protection for Safety-Related Workplace SpeechĮffective 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.

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. 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).

Phew hockey