By: Laura E. Beverage and
New protections for employees concerned about workplace safety during a public health emergency are now in effect in Colorado. House Bill (“HB”) 20-1415 seeks to protect employees and some independent contractors from retaliation or discrimination if they raise safety or health concerns about a public health emergency (“PHE”) to their employer. The law became effective upon Governor Jared Polis’ signature on July 11, 2020.
Under the new law, PHE is defined as a public health order issued by a state or local agency or a disaster emergency declaration based on public health, by the Governor. The legislation protects workers who report a concern “in good faith” regarding workplace health and safety standards or practices related to the PHE. The employee cannot make a complaint based on any information known to be false or that recklessly disregards the veracity of the information. Complaints or concerns can be made to other workers, to a government agency, or to the public “if the company controls the workplace conditions giving rise to the threat or violation.” Complaints can also be made directly to the “principal.” Within this context, a “principal” is defined as: 1) an “employer” as set forth in the federal Fair Labor Standards Act of 1938; 2) “foreign labor contractor and a migratory field labor contractor or crew leader”; 3) “[the] state of Colorado, local governments, and political subdivisions of the state”; and 4) “[any] entity that contracts with five or more independent contractors in the state each year.”
The bill prohibits a “principal” from retaliating or discriminating against an employee who raises reasonable concerns as described above. The bill also provides protection for an employee who want to supply their own personal protective equipment (“PPE”). The self-provided PPE, such as masks, gloves, gowns, or face guards, must be more protective than any PPE provided by the employer, be recommended by government health officials with jurisdiction over the workplace, and not impede the workers ability to “fulfill the duties of [their] position.” For example, use of a respirator that significantly muffles an employee’s voice my render an employee incapable of performing a job requiring ongoing verbal interaction.
To enforce the new legislation, an employee has two years after an alleged violation to seek relief in three ways: 1) filing a complaint with the Colorado Department of Labor and Employment’s Division of Labor Standards and Statistics (“DLSS”); 2) bringing a private action in district court; or 3) bringing a whistleblower action on behalf of the state in District Court. However, to file either a private action or a whistleblower action, an employee must have filed a complaint with DLSS and exhausted all administrative remedies.
If an employee is successful in court, the employee may be reinstated with or without back pay. The employee may recover either $10,000.00 or any lost pay resulting from the violation, whichever is greater, as well as any other relief the court deems appropriate. Further, an employee may recover attorney’s fees as well as punitive damages if the principal’s actions were intentionally malicious or recklessly indifferent to the employee’s rights. However, courts are explicitly required to consider the “size and assets” of an employer as well as the “egregiousness” of the conduct when awarding damages. Further, the legislation provides that if multiple workers allege violation of their rights, each of those claims may be pursued as separate violations under the new law and assessed separate fines, penalties, or other remedies.
If an employee brings an action on behalf of the state as described above, the employee is required to inform DLSS and the agency may prosecute the case on its own behalf. Even if the employee continues to pursue the claim on behalf of the state independent of the agency, any penalties and any equitable relief determined by the court will be divided between the agency and the Plaintiff with the agency recovering 75% of the penalty amount and the employee recovering 25%. Reasonable attorney’s fees recovered are payable in whole if the action is successful. The Colorado Department of Labor and Employment may promulgate additional regulation to further the implementation of the new law.
With the ongoing pandemic requiring employers to change work environments, policies and procedures, this legislation creates an additional state protection on top of federal workplace safety whistleblower laws. Employers will be required to post notice of the new law when the Department of Labor and Employment creates standards for notice requirements. Employers should remain aware of ongoing changes to guidance from federal state and local agencies.
Jackson Kelly’s Workplace Safety and Health and Employment Practice Groups keep close track of new developments to help clients adapt to an ever-changing regulatory environment during this crisis.