Court Rules New York Ophthalmologist Violated OSH Act by Retaliating Against Employee for Reporting COVID-19 Safety Concerns
A federal court has found an upstate New York ophthalmologist violated the whistleblower protections of the Occupational Safety and Health (OSH) Act by retaliating against an employee who reported the lack of protections against COVID-19 to the New York State Department of Health (NYSDOH). When the COVID-19 pandemic was raging between March 2020 and December 2020, an employee of Kwiat Eye and Laser Surgery complained on multiple occasions to her supervisor that the practice was not following New York State-mandated health and safety protocols, which included mask-wearing, social distancing, and enhanced hygiene protocols. By December 2020, the state had recorded more than 30,000 deaths related to COVID-19.
When the practice refused to update its working practices, the employee filed two complaints with the NYSDOH, one in December 2020 and a second in January 2021. NYSDOH contacted the practice on February 24, 2021, regarding the complaints, and later that morning, practice owner Dr. David Kwiat confronted the employee and fired her on the spot, stating the termination was for reporting the lack of COVID-related health and safety protocols to NYSDOH.
The Department of Labor’s (DoL)Occupational Safety and Health (OSHA) New York Region’s Whistleblower Protection Program launched an investigation and determined that the termination constituted unlawful retaliation under section 11(c) of the OSH Act. The DoL’s Office of the Solicitor filed a lawsuit against Kwait and his Amsterdam practice in March 2022.
US District Court Judge Anne Nardacci recently ruled that the defendants had retaliated against an employee based on protected activity. Kwait and his practice were prohibited from future violations of the anti-retaliation provisions of the OSH Act and are required to prominently post a notice for employees stating the practice will not discharge or in any manner discriminate against any employee for engaging in activities protected by section 11(c) of the OSH Act. The court also ordered the practice to pay a contempt fine of $1,250 for discovery violations.
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OSHA requested that Kwait and the practice pay exemplary or punitive damages to the employee, in addition to compensation for all lost wages and benefits due to the unlawful termination. OSHA recommends reimbursement of costs, expenses, and other pecuniary losses and compensation for non-economic losses, including emotional distress. The court is due to hold a hearing on that request.
“The court’s decision reinforces the Occupational Safety and Health Act’s guarantee that workers have the right to raise safety and health concerns to their employers and file complaints with OSHA and other regulatory agencies without fear of termination and retaliation and the chilling effect such actions have on workers’ coming forward with concerns about health and safety hazards in their workplaces,” said OSHA Regional Administrator Richard Mendelson in New York.
