7 CCR 1103-11-5 - Protected Activity under PHEW

5.1 For the PHEW provision that raising a "concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety" is protected against retaliation if the worker's belief as to a violation or threat is, whether or not correct, was "reasonable" and "in good faith" (C.R.S. § 8-14.4-102(1)) :
5.1.1 relevant evidence includes a recommendation, research, guidance, or other information from or provided by a public health agency (federal, state, or local), a major medical association, a major industry-specific trade association, a major public health organization, or another similarly reliable source; and
5.1.2 the worker, whether or not citing a specific rule or guideline, must state what action, condition, or situation they believe constitutes a qualifying violation of a rule regarding, or significant threat to, workplace health or safety.
5.2 For protected use of a worker's own personal protective equipment ("PPE") under PHEW, the requirements of C.R.S. §§ 8-14.4-102(a) -(c) are conjunctive: PHEW protection for PPE use applies only if the PPE provides a higher level of protection as required by 102(a), is recommended by an applicable public health agency as required by 102(b), and does not render the worker incapable of performing as required by 102(c).
5.2.1 For the C.R.S. § 8-14.4-102(3)(a) requirement that a worker's PPE "provides a higher level of protection than the equipment provided by the principal":
(A)the provisions of Rule 5.1.1 as to relevant information apply;
(B)information may not be relied on if, before the worker either brought the PPE to work or communicated about the PPE with the principal, the information was repealed or otherwise repudiated by the person or entity who provided it, but information may still be relied on if, though no longer publicly published, it was not repealed or repudiated;
(C)if principal-provided PPE of the same type is either cleaned or replaced, the worker's own PPE must also be either cleaned or replaced; and
(D)the requirement is not met if the PPE is more protective of the worker yet less protective of others (e.g., a mask with a vent releasing air that, even if highly protective for the wearer, is less protective for others).
5.2.2 For the C.R.S. § 8-14.4-102(3)(b) requirement that PPE is "recommended by a federal, state, or local public health agency with jurisdiction over the worker's workplace," the provisions of Rule 5.2.1 as to relevant information apply.
5.2.3 Special cases as to the requirements of C.R.S. §§ 8-14.4-102(3)(a) (that the PPE "provides a higher level of protection than the equipment provided by the principal") and 8-14.4-102(3)(b) (that the PPE "is recommended by a federal, state, or local public health agency with jurisdiction over the worker's workplace").
(A)If a principal provides a worker no face covering during (1) a public health emergency related to an airborne pathogen, or (2) a governmental public health recommendation of a face covering for those in the worker's occupation, then (3)a worker using their own face covering presumptively meets the C.R.S. §§ 8-14.4-102(3)(a) -(b) requirements ("higher level of protection" and ""recommended"), without need for further evidence or inquiry, unless the principal proves that the worker's face covering is worse than none at all.
(B)If a principal (1)provides a form of PPE (e.g., a mask) that is compliant with all applicable recommendations by federal, state, and local public health agencies with jurisdiction over the workplace, and (2) procures that PPE from a provider it knows to provide reliable PPE (from experience prior to obtaining the particular item it is providing to a worker wishing to use their own PPE), then (3) a worker may use their own PPE of the same type (e.g., a different mask) only if it was obtained from a reliable provider, whether or not the principal's provider.
5.2.4 An unlawful decision to disallow a worker from wearing PPE that they are permitted to use under C.R.S. §§ 8-14.4-102(3)(a) -(c) is an adverse action, and may qualify as a constructive discharge if all of the following apply:
(A)the principal fails to remedy the unlawful decision immediately;
(B)working without the PPE would increase a substantial threat to health or safety for any person; and
(C)the worker terminates the work for the principal because of unwillingness to work without the PPE.

Notes

7 CCR 1103-11-5
43 CR 20, October 25, 2020, effective 9/21/2020 43 CR 23, December 10, 2020, effective 1/1/2021 45 CR 03, February 10, 2022, effective 3/2/2022 45 CR 23, December 10, 2022, effective 1/1/2023

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