Colorado Enacts New Law Regarding Disclosure of Health Care Employee Information

On March 21, 2011, Governor John Hickenlooper signed House Bill 11-1148, which creates a new statutory section exempting health care employers from liability for certain good faith disclosures of former health care employees' information.  The bill, which is effective July 1, 2011, exempts employers from liability under Colorado's blacklisting and unfair labor practices statutes when they disclose information about health care workers pertaining to drug violations or affecting patient safety.  As described by the Colorado Hospital Association, the bill intends to enhance patient safety, reduce the costs of poorly performing employees, reduce the risk that a prospective employer may put workers in a position to cause further harm, and protect employers from liability when disclosing certain information.

Specific Provisions

The bill, which will be codified as C.R.S. § 8-2-111.6, provides particular information employers may disclose and particular circumstances when disclosure is allowed.  First, employers may only disclose information known about any involvement in drug diversion, drug tampering, patient abuse, violation of drug or alcohol policies of the employer, or crimes of violence.  Testimony before the House Committee and Health and Environment made clear that known involvement is not the same as suspected involvement.  Second, information may only be provided in response to a request by a prospective or current employer of a health care worker.  "Health care worker" is defined broadly by the act to include various licensed professionals, or "any person who interacts directly with a patient or assists with the patient care process."  If good faith disclosures are made under those conditions, employers and their employees, agents, or representatives will be exempt from liability under Colorado's blacklisting and unfair labor practices laws.

Employers are presumed to be acting in good faith, and liability is excused, unless the former employee can show by a preponderance of the evidence that the information is false and the employer knew or reasonably should have known that the information is false.  In other words, the former employee bears the burden of showing that the employer intentionally or recklessly disclosed false information.

Employer Compliance

The new law is effective July 1, 2011.  At that time, health care employers should ensure the following before disclosing information about former employees:

• The employee must be a "health care employee" as defined by the act.
• Disclosure must be in response to a request by a prospective or current employer of a health care worker.
• The disclosure must concern involvement in drug diversion, drug tampering, patient abuse, violation of drug or alcohol policies of the employer, or crimes of violence.
• The employer must know that the above activity occurred, not merely suspect as much.
• Employees, agents, and representatives of the employer must be authorized to provide the information in question.

To ensure compliance with the law and avoid potential liability, we recommend that health care employers work closely with outside counsel in developing policies and procedures for the disclosure of information about their current or former health care employees.