On May 31, 2023, Governor Polis signed Senate Bill 22-097 (SB 22-097), which amends Colorado’s Public Health Emergency Whistleblower Law (CO PHEW). Of significance, amendments to CO PHEW clarify that the law applies to employers who employ five or more employees or independent contractors.
CO PHEW was originally passed in 2020 to provide individuals in the workplace, with the means to bring forth workplace health or safety concerns regarding the COVID-19 pandemic to the Colorado Department of Labor & Employment (CDLE). In doing so, the individual would be safeguarded from any potential negative response from the employer, as a result of raising said health and safety concerns. According to the original release of CO PHEW, the following verbiage was once applicable:
- A principal shall not discriminate, take adverse action, or retaliate against any worker based on the worker, in good faith, raising any reasonable concern 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 to the principal, the 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.
- A principal shall not require or attempt to require a worker to sign a contract or other agreement that would limit or prevent the worker from disclosing information about workplace health and safety practices or hazards related to a public health emergency or to otherwise abide by a workplace policy that would limit or prevent such disclosures.
However, with the passage of SB 22-097, the wording “related to a public health emergency” has specifically been omitted from the text. In doing so, the whistleblower protections have now been expanded to include any health or safety concerns that are observed/reported by an employee. The alleged concerns no longer have to be specifically tied to COVID-19 or any other public health emergency-related reason.
Next Steps for Employers
In light of the expansion this legislation creates, it is recommended that employers review their current policies and procedures regarding whistleblower protections and make any necessary updates to verbiage in order to align with the changes to the law. It is also recommended that employers train members of management on the organization’s procedures for responding to and/or addressing any employee concerns related to workplace health and safety.
Employers considering any adverse action against an individual who has raised health or safety concerns should consult with legal counsel prior to taking any action on the matter.
