Understanding Colorado’s PHEW Act: a Primer on the State’s Public Health and Safety Whistleblowing Law

In late 2019, Linda Rodriguez began working at Amazon’s warehouse in Thornton, Colorado. Just a few months into her new job, the COVID-19 pandemic struck, bringing with it a host of challenges she never anticipated. Rodriguez quickly observed what she described as troubling shortcomings in the company’s treatment of its workers during the pandemic. She noticed that warehouse supervisors were failing to communicate critical health and safety information to Spanish-speaking employees, leaving a significant segment of the workforce in the dark about evolving pandemic protocols and expectations. Disturbed by what she saw, Rodriguez began asking questions and raising concerns. But what she believed was a good-faith effort to protect her coworkers may have made her a target. In August 2020, Amazon fired her, which was a move she believed was retaliation for speaking up.

Fortunately, the Colorado legislature had considered that these types of unfortunate scenarios may become more prevalent when the workforce began to return after the initial COVID-19 shutdown. By the time of Ms. Rodriguez’s termination, Colorado had already enacted HB-20-1415, otherwise known as the Protected Health/Safety Expression and Whistleblowing (PHEW) law, giving workers new protections amid the crisis. Rodriguez was able to file a formal complaint against Amazon under this new law.

PHEW was enacted as a direct response to the COVID-19 pandemic. In its original form, it barred employers and related entities from retaliating against workers who raised concerns about workplace health and safety during a public health emergency, especially when conditions violated public health guidelines. It also protected workers who wore personal protective equipment or who participated in investigations or proceedings related to unlawful practices.

In 2022, the legislature voted to amend PHEW to remove the phrase “related to a public health emergency.” This change had significant effects, as it expanded PHEW’s statutory protections to shield workers from retaliation that could occur as a result of them flagging violations of government health/safety rules, even in the absence of a public health emergency.

The amended act is broken into nine sections that each address different aspects of PHEW (see C.R.S 8-14.4 §101-109). PHEW applies to traditional employers under the Fair Labor Standards Act (FLSA), labor contractors, government entities, businesses contracting with five or more independent contractors annually, and those engaged in agricultural employment. C.R.S. 8-14.4-101.

PHEW largely is framed to provide worker protections for reporting. It states that employers may not retaliate against workers who, in good faith, raise reasonable concerns about workplace health or safety violations or significant threats, whether those threats be to the employer, coworkers, government, or to the public, if the employer controls the conditions at issue. C.R.S. 8-14.4-102. Employers may also not force their workers to sign agreements, or follow policies, that restrict them from disclosing health or safety threats, and workers cannot be retaliated against for choosing to wear PPE (such as masks or gloves, in the case of the COVID-19 pandemic). Id. at § (2), (3).

Employers also cannot retaliate against workers who oppose practices that they reasonably believe are unlawful under the act or who participate in investigations or proceedings related to such violations. Id. at § (4). However, PHEW does not protect workers who knowingly make false statements or act with reckless disregard, and workers still cannot disclose protected individual health information in violation of state or federal laws. Id. at § (5), (6) PHEW also requires that employers post notices of worker’s rights under the act “in a conspicuous location.” C.R.S 8-14.4-103

Further, PHEW outlines specific procedural steps for employees seeking relief for violations. C.R.S 8-14.4-104. Under the Act, an individual must first file a complaint with the Colorado Division of Labor Standards and Statistics in the Department of Labor and Employment within two years of the alleged violation. C.R.S 8-14.4-105. Only once any potential administrative remedy has been exhausted through the Division may an employee bring an action in court. C.R.S 8-14.4-106. Such an action must be filed within 90 days of exhausting any potential administrative remedies. Id. at  § (1).

Section 8-14.4-107 of the act allows a “whistleblower”—a worker or their representative with knowledge of a violation—to file a civil action on behalf of the state after exhausting administrative remedies. The whistleblower must notify the Division of Labor of the alleged violations when filing the lawsuit, and the state may intervene. C.R.S. 8-14.4-107(2). If the court finds a violation, the judgment proceeds are split 75/25 with the majority going to the Division of Labor for enforcement, and the rest going to the first whistleblower to have filed the action. Id. § (3).

Courts may choose to grant a range of relief.  Id. at  § (2),(3). Employees can receive reinstatement, be rehired, recover lost pay (or up to $10,000, whichever is greater), or receive “other equitable relief.” Id. at § (2)(a)-(c). If the employer’s conduct was intentional and carried out with malice or reckless indifference, the worker may also recover compensatory damages (for emotional harm and other losses) and punitive damages, unless the employer can show good-faith efforts to comply with the law. Id. § (3). Damages are not capped, but written into the act is language stating that courts must consider the employer’s size and the severity of the violation in determining damages, and any party may demand a jury trial if these types of damages are sought. Id. § (3)(d). Prevailing plaintiffs are also entitled to reasonable attorney fees. Id. § (5).

This lengthy and structured process aims to balance timely resolution and thorough review.

Finally, while most of Article 14.4 deals with employers/employees in general, § 109 of the act specifically addresses agricultural workers. During a public health emergency, Colorado agricultural employers must provide adequate housing, safety training, and multilingual informational materials to workers. C.R.S. 8-14.4-109. They must meet space and ventilation standards or follow public health order alternatives, ensure single-occupancy housing for open-range livestock workers, and post legal and health guidance in common areas. Id.

While the comprehensive nature of PHEW aims to empower employees to speak up without fear of retaliation, recent court decisions show that the precise nature of the legal protections available under PHEW are still an evolving area of law. We will address this topic in another blog post addressing PHEW.

Special thanks to Stephanie Holt for her instrumental contribution to this post.

Additional Source Consulted:

Andrew Kenney, Amazon Didn’t Provide COVID‑19 Information in Spanish, Ex‑Thornton Employee Alleges, CPR News (May 7, 2021), https://www.cpr.org/2021/05/07/amazon-didnt-provide-covid-19-information-in-spanish-ex-thornton-employee-alleges/

This blog exists for educational and informational purposes only. It should not be seen as legal advice on any subject matter and does not form an attorney-client relationship. Readers should consult with their own counsel regarding any legal questions they have related to a specific circumstance. Additionally, any information contained on the blog is true and accurate to the best of our knowledge, but there may be omissions, errors, or mistakes. Particularly because the law regarding an issue can change over time, this blog should not be used as a substitute for the reader’s own legal research.