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Colorado Law Offers Rewards for Whistleblowers Reporting Workplace Health and Safety Violations

Posted  August 14, 2020

As lock-downs and business shutdowns continue in the U.S., essential workers continue to report to work, providing healthcare, putting food on our tables, delivering goods and service, ensuring public safety, and more. These essential workers may face serious risks as they perform their jobs, often as a result of workplace health and safety violations by employers.

Responding to the unique challenges of the COVID-19 pandemic, Colorado has sought to provide relief to essential workers with its newly-enacted Public Health Emergency Whistleblower (“PHEW”) Act, which gives additional protection to individuals who act to further workplace safety and health.  In addition, the PHEW Act allows for whistleblowers to file qui tam actions and receive a share of any government recovery.

Colorado is right to look to whistleblowers to help in this crisis.  Whistleblowers are indispensable in promoting accountability and transparency, as well as in combating waste, fraud, and abuse.  Whistleblowers are particularly important now as governments, businesses, and individuals adjust to the new realities of the COVID-19 pandemic.

Colorado is also right to offer financial rewards to whistleblowers.  Serving as a whistleblower carries significant personal and professional risks.  Whistleblower rewards serve as the basis of a public-private partnership between whistleblowers and the government agencies charged with investigating and prosecuting wrongdoers. With lives at risk, enhancing that public-private partnership is more important now than ever.

Colorado’s PHEW Act

The need for the PHEW Act was highlighted by frontline workers who testified in support of the new law. The majority of them were nurses who said they were asked to perform actions that they felt were unsafe, either without personal protective equipment (PPE) or with limited protection.

Among the activities that are protected under the Public Health Emergency Whistleblower (PHEW) Act are:

  • Raising concerns about workplace safety and health;
  • Opposing practices that a worker believes violate the Act; and,
  • Participating in an investigation into possible violations.

PHEW provides that workers have the right to wear their own PPE, as long as it has been approved by a health agency and exceeds the protection provided by the employer.

Non-disclosure agreements that attempt to prevent or restrict protected activities are void under the Act.

The law is similar to whistleblower laws enforced by the federal Occupational Health and Safety Administration (OSHA) in that it protects workers from retaliation. It is also similar in requiring that a person seeking relief under the law, whether it is someone who has personally suffered retaliation or a whistleblower who knows of violations, first file an administrative complaint, in this case with the Colorado Department of Labor and Employment. There are a variety of remedies for workers who have suffered adverse consequences in violation of the Act. These include reinstatement, back pay, compensatory damages, and punitive damages. The Colorado law provides relief for aggrieved “workers,” meaning not just employees, but many independent contractors as well.

The PHEW Act, however, is not just a whistleblower protection act, nor does it simply provide compensatory damages to the whistleblower: the PHEW Act includes qui tam procedures and provides that whistleblowers “shall” be entitled to 25% of amounts recovered in any such private action brought in the name of the state.

The act states that after the administrative process has been completed, a whistleblower can bring a court action. PHEW Act whistleblowers proceeding in court bring their actions in the name of the state, and the state has the opportunity to intervene and take over the case. If the court finds that a violation of the act has occurred, it can impose a fine of $100 to $1,000 for each violation and require the employer to take certain actions, such as remediating an unsafe condition. The whistleblower is entitled to 25% of the recovery as well as attorney fees.

The Importance of Whistleblowers in the COVID-19 Crisis

Workplace safety violations expose essential workers to unnecessary risks, and make it harder to fight COVID-19.  Whistleblowers serve as a crucial line of defense, and we have called for the enactment or amendment of State False Claims Acts to protect trillions of dollars in state and federal funds now being spent in response to the Covid-19 pandemic. Colorado has a healthcare False Claims Act, which provides protection for whistleblowers who report fraud or abuse involving the Colorado Medicaid program.

Colorado’s PHEW Act recognizes the role whistleblowers can play in public safety – and offers financial rewards for those whistleblowers.

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