Understanding Colorado’s PHEW Act: a Closer Look through Recent Case Law
This is the second part of a two-part discussion on Colorado’s Protected Health/Safety Expression and Whistleblowing (PHEW) law. The first blog post discussed PHEW’s basic framework. This second portion summarizes recent state and federal court cases addressing the law.
Littlewood v. Novartis Pharm. Corp., Civil Action No. 21-cv-02559-CMA-SKC, 2022 U.S. Dist. LEXIS 15152 (D. Colo. Jan. 27, 2022)
In one of the earliest cases filed under PHEW, Plaintiff Lauri Littlewood, a pharmaceutical sales representative, brought an employment discrimination lawsuit against her former employer, Novartis. Ms. Littlewood claimed she was subject to unlawful retaliation related to her raising COVID-19 safety concerns, including urging the company to adopt stronger precautions. She later self-isolated after possible exposure and was terminated in December 2020 for alleged poor performance. Ms. Littlewood also claimed gender and age discrimination and unequal pay.
At the time that Ms. Littlewood filed suit, the Colorado Supreme Court had not yet interpreted PHEW and no authoritative precedents existed. Because of that, the court declined to exercise supplemental jurisdiction of the PHEW claim and dismissed it without prejudice.
Mitchell v. S. Health Partners, Inc., 699 F. Supp. 3d 1149 (D. Colo. 2023)
In October of 2023, Allison Mitchell filed a lawsuit under PHEW. In this case, Ms. Mitchell was a nurse employed by Southern Health Partners (SHP) to work at a county jail. Ms. Mitchell raised alarms about SHP staff failing to follow public health orders regarding PPE and social distancing. After reporting these concerns, she claimed she faced retaliation and discrimination, including a three-day suspension for an alleged policy violation involving inmate medication. Feeling pressured by the hostile environment, the plaintiff resigned. Ms. Mitchell subsequently filed a lawsuit based on discrimination, retaliation, and enforcement of an informal policy that limited employees’ ability to report health and safety violations—actions prohibited under PHEW.
The court denied the defendant’s motion for summary judgment. The court held that Ms. Mitchell presented sufficient proof of retaliation and discrimination tied to her whistleblowing about workplace safety violations to present questions of fact for the jury. For instance, after she raised concerns about SHP’s failure to enforce mask-wearing and other COVID-19 protocols, she experienced escalating hostility from her colleagues, including being ostracized, mocked through exaggerated use of PPE, and subjected to aggressive confrontations. She was then reassigned to less favorable schedules, denied reasonable accommodations, and ultimately disciplined through a suspension for alleged procedural violations.
Furthermore, the plaintiff challenged SHP’s claim that formal whistleblower protections were effective. She presented evidence of an informal workplace culture that discouraged reporting, including being told by a manager to “let it go,” a lack of investigations into her complaints, and peer retaliation going unaddressed. This suggested SHP maintained an unofficial policy undermining PHEW’s protections against limiting disclosure of health and safety concerns.
This case highlighted the crucial role that PHEW could play in protecting employees who speak out about workplace safety, especially during public health crises like the COVID-19 pandemic.
Schlagel v. Disc. Tire Co. of Colo., Inc., Civil Action No. 23-cv-02909-NYW-CYC, 2025 U.S. Dist. LEXIS 15102 (D. Colo. Jan. 28, 2025)
This case addressed but, for the time being, declined to answer, one of the most important questions that remains unanswered regarding PHEW: What exactly counts as an adverse employment action? Matthew Schlagel, a longtime employee and store manager for Discount Tire Co. in Colorado, claimed that he was discouraged from taking FMLA leave for mental health reasons, demoted, and eventually forced to resign. He claimed that these actions were retaliatory responses under PHEW to his attempt to exercise his legally protected right to request FMLA benefits.
In cases brought under federal law that also have state law claims, federal courts can generally choose whether to exercise jurisdiction over the state law claims. Specifically, federal courts may choose to decline supplemental jurisdiction over such claims under 28 U.S.C. § 1367(c)(1). The court in Schlagel chose not to exercise supplemental jurisdiction, explaining there was still no controlling or persuasive precedent from the Colorado Supreme Court or Court of Appeals on how Colorado courts would interpret the statute—whether by applying a Colorado State Employee Assistance Program (CSEPA)-like “disciplinary action” standard or a stricter “adverse action” standard drawn from other laws.
Forbes v. Best Buy Co., Inc., Civil Action No. 23-cv-01574-CNS-MDB, 2025 U.S. Dist. LEXIS 60613 (D. Colo. Feb. 26, 2025)
This is another recent case that involved a Best Buy employee and highlighted the importance of understanding the requirements for protection under the PHEW statute.
The plaintiff tested positive for COVID-19 on December 8, 2021, and was granted paid sick leave through December 17. He agreed to return to work on December 20th, but did not show up or contact his supervisor on December 20th, 21st, or 22nd. As a result, Best Buy terminated him on December 22nd for job abandonment under its attendance policy. Notably, there was no indication that the plaintiff informed the company he was still ill or had approval for additional leave beyond December 17th. Best Buy had previously communicated that he could request more time off if necessary and had not objected to his initial COVID-19 leave.
The court reviewed the plaintiff’s claim under PHEW but ultimately found no evidence that the plaintiff engaged in any protected activity or reported any health or safety violations during his employment. Even when interpreting the facts in the plaintiff’s favor, the court concluded that the PHEW claim lacked merit. In contrast to Mitchell, which dealt with an employee raising concerns about how their employer was following COVID-19 safety protocols, the plaintiff in this case took leave related to COVID-19, but he never reported a violation of, nor opposed an unlawful practice relating to, any health or safety rules. Simply taking sick leave due to COVID-19 was not enough, according to the court, to invoke PHEW’s protections. Consequently, the court recommended granting the defendant’s motion for summary judgment, and dismissing the case.
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From February 2025 up through November 2025, few additional cases have been decided in either state or federal court that further clarify what constitutes protected activity or unlawful employer conduct under the PHEW Act. This ongoing uncertainty leaves both employees and employers navigating somewhat uncharted legal waters when it comes to reporting, and responding to, workplace health and safety concerns and retaliation instances.
But just because we don’t have full clarity yet does not mean PHEW is not still working to shape important legal and workplace battles. For instance, Jennifer Sokol, a former firefighter with the Los Pinos Fire Protection District, found herself battling not only the trauma of domestic violence but also a workplace that failed to protect her in its aftermath. After a fellow firefighter assaulted her and was charged and pled guilty, Sokol requested reasonable accommodations to address her safety and PTSD. Rather than supporting her, the district placed her on leave, citing vague performance concerns, and ultimately fired her for unrelated policy violations. Sokol filed multiple complaints, including alleged under PHEW that her termination was a retaliatory result of her raising safety concerns. Ultimately, the department agreed to pay Sokol and her attorney $125,000 to settle the case.
Additionally, two Colorado Courts have issued orders in the last few years that further help us to understand how PHEW can be used to the benefit of workers.
In February 2023, the Adams County District Court denied a defendant’s motion to dismiss claims brought under PHEW in Esseveld v. Children’s Hosp. Colo. See Esseveld v. Children’s Hosp. Colo., No. 2022CV31468 (Colo. Dist. Ct. Adams Cnty. July 28, 2025) (order denying motion to dismiss). The plaintiff, a former employee at Children’s Hospital Colorado, alleged she was wrongfully terminated after raising concerns about the hospital’s failure to follow COVID-19 protocols, as well as broader patient safety issues. She brought four claims against the hospital, including one under the Public Health Emergency Whistleblower (PHEW) law and another under state law for wrongful termination in violation of public policy. The hospital moved to dismiss the public policy claim, arguing it was preempted by both PHEW and the Health Care Worker Retaliation Statute (HCWRS), which they argued already provide remedies for the kind of retaliation the plaintiff alleged. The plaintiff countered that her public policy claim was distinct from her PHEW claim because it was based on non-COVID-related concerns. The court agreed with her, concluding that there was no authority showing that PHEW preempts a wrongful termination claim grounded in public policy. Thus, plaintiffs can potentially bring Colorado state law claims under PHEW and for wrongful discharge in violation of public policy.
In Smith v. Denver Health & Hosp. Auth., a case from February 2024 in the Denver County District Court, the court denied Denver Health’s motion to dismiss plaintiff Eric Smith’s second amended complaint, which brought two claims: one of those being retaliation under PHEW. See Smith v. Denver Health & Hosp. Auth., No. 2023CV31575 (Colo. Dist. Ct. Denver Cnty. July 28, 2025) (order denying motion to dismiss second amended complaint). The plaintiff claimed that the defendant had retaliated, discriminated, and took adverse action against him because he raised reasonable concerns about security staffing. The court rejected defendant’s argument that the Colorado Governmental Immunity Act (CGIA) barred the plaintiff’s PHEW claim. The court reasoned that the statute serves broader public policy goals, rather than seeking compensation for tort-like injuries. Accordingly, this decision established that PHEW claims do not “lie in tort” and, as a result, are not governed by the CGIA’s immunity provisions or notice requirements.
As courts continue to wrestle with PHEW, it will remain critical for workers to understand their rights under PHEW and for employers to foster transparent, supportive environments that encourage safe reporting without fear of retaliation. Moving forward, clearer judicial guidance will be essential to fully realize the protective intentions of PHEW and to promote healthier, safer workplaces across Colorado.
Special thanks to Stephanie Holt for her instrumental contribution to this post.
Additional Source Consulted:
Reuben M. Schafir, ‘I Lost an Entire Career’ After Being Assaulted, Durango Herald, Dec. 9, 2023, https://www.durangoherald.com/articles/i-lost-an-entire-career-after-being-assaulted/
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.