On July 11, 2020, Governor Jared Polis signed Colorado House Bill 20-1415 into law, granting Colorado workers protections from discrimination or retaliation when they raise health and safety concerns related to a “public health emergency” (such as the current COVID-19 pandemic).
Specifically, this new law prohibits “a principal”—which includes an “employer” as defined by the Fair Labor Standards Act—from discriminating or taking adverse or retaliatory action against any employee who has, “in good faith,” raised reasonable concerns about workplace health and safety violations or raised concerns about “significant workplace threat to health or safety, related to a public health emergency.” Furthermore, the new law requires employers to post notification of these rights in a “conspicuous location.”
In order to be protected by this new Colorado workplace law, the employee must bring his or her concern 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.” And, of course, the employee must not disclose false information, nor spread information “with reckless disregard for the truth or falsity of [it].”
Additionally, the law extends these protections from employment discrimination and retaliation to workers who voluntarily wear their own personal protective equipment (PPE) at the workplace—such as face shields, masks, and gloves. Under the law, the employee’s voluntarily-worn PPE must meet the following three conditions: it must (1) provide “a higher level of protection than the equipment provided by the principal,” (2) “be recommended by a federal, state, or local public health agency with jurisdiction over the worker’s workplace,” and (3) “not render the worker incapable of performing the worker’s job or prevent a worker from fulfilling the duties of the worker’s position.”
A worker may seek relief for violations of this employment law by filing a complaint with the Colorado Department of Labor’s Division of Labor Standards and Statistics, or by bringing an action in district court. Take note, though, prior to filing a lawsuit, the worker must first exhaust his or her administrative remedies by filing a complaint with the Division of Labor Standards and Statistics within two years of the alleged workplace violation. (The law charges the Division with making a complaint form publicly available.)
An employee who is determined to have been subjected to discrimination or retaliation may be entitled to: 1) reinstatement with or without back pay; or 2) the greater of either $10,000 or lost pay and other equitable relief. An employee may also recover compensatory damages, punitive damages, and reasonable attorney fees.
The law enables a “whistleblower” to bring an action and recover for violations.
During the COVID-19 pandemic—as local, state, and federal workplace rules evolve to meet the health and safety needs of this crisis, employers should stay informed of new laws and regulations and be prepared to, rapidly, implement changes to workplace policies and procedures.
The employment law attorneys at Sears & Associates, P.C. are available for consultations regarding Colorado’s employment laws. Please call us at 719-471-1984 if you are seeking legal advice relating to these new whistleblower protections as an employer or employee.
