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March 23, 2022
DOL files whistleblower suit against NY ophthalmologist

The U.S. Department of Labor (DOL) has filed suit against an Amsterdam, New York, ophthalmologist for firing an employee who raised concerns about the practice’s failure to implement state-mandated protocols protecting employees from COVID-19 and later filed complaints with state health officials.

The DOL’s complaint alleges that, between March and December 2020, an employee expressed concerns to the employee’s supervisor about the lack of COVID-19 safety protocols, including mask wearing and social distancing, at Kwiat Eye and Laser Surgery PLLC, operated by David Kwiat, MD.

The federal Occupational Safety and Health Administration (OSHA) conducted a whistleblower investigation that found the doctor and his practice retaliated against the employee for filing complaints with the New York State Department of Health. The investigation revealed that Kwiat fired the employee the same day the health department contacted his office. Kwiat specifically cited the employee’s contact with state officials as the reason for the termination.

Federal OSHA enforces whistleblower protections under the Occupational Safety and Health (OSH) Act, as well as 24 other statutes regarding airline, commercial motor carrier, consumer product, food, and motor vehicle safety, as well as environmental, financial reform, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money-laundering laws.

The DOL is asking the court to enjoin the defendants, Kwiat and Kwiat Eye and Laser Surgery, from future violations of the OSH Act’s antiretaliation provisions and order them to:

  • Pay damages to the complainant for all lost wages and benefits resulting from the unlawful termination.
  • Offer to reinstate the complainant to the complainant’s previous position, with full benefits, seniority, and other prerequisites of employment, and/or provide appropriate front pay in lieu of reinstatement.
  • Reimburse the complainant for any costs, expenses, and/or other pecuniary losses incurred, as well as compensation for noneconomic losses, including emotional distress.
  • Pay exemplary or punitive damages to the complainant.
  • Prominently post a notice for employees stating that the defendants will not discharge or in any manner discriminate against any employee for engaging in activities protected by Section 11(c) of the OSH Act.

“Pursuing retaliation cases such as this one remains a priority for the U.S. Department of Labor,” New York Regional Solicitor of Labor Jeffrey S. Rogoff said in a statement. “Employers must be held accountable both for their failures to follow critical safety protocols during a global pandemic and for firing employees who report such failures.”

Richard Mendelson, OSHA’s New York regional administrator, says, “The Occupational Safety and Health Act guarantees workers the right to raise safety and health concerns to their employers without fear of termination and retaliation. When a business owner retaliates against employees for filing a complaint, it creates a chilling effect on others from coming forward with concerns about health and safety hazards in their workplaces.”

OSHA’s COVID-19 employer guidance suggests that employers establish antiretaliation programs allowing workers to voice their COVID-19 health and safety concerns anonymously. The guidance also reminds employers that the OSH Act (Section 11(c)) prohibits discharging or in any other way discriminating against an employee for engaging in occupational safety and health activities.

 

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