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with the principal, the information was repealed or otherwise repudiated by the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though no longer publicly published, it was not repealed or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
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