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February 24, 2023
Texas dental workers win back wages over COVID-19 concerns

A dental hygienist and dental assistant have won $15,706 in back wages to be paid by the North Texas dentists who fired them for raising concerns about COVID-19 safety measures in spring 2020 following a federal whistleblower investigation conducted by the Occupational Safety and Health Administration (OSHA) and litigation filed by the Department of Labor (DOL), OSHA announced February 22.

OSHA’s whistleblower investigation found that Roger and David Bohannan of Roger H. Bohannan DDS Inc. of North Richland Hills, Texas, furloughed the two employees when Texas banned specific dental procedures in March and April 2020 at the height of the pandemic.

During their furloughs, the dental hygienist and dental assistant asked what safety measures would be in place when patients and employees returned. The practice would not reinstate the hygienist after citing health and safety guidance from OSHA and the Centers for Disease Control and Prevention (CDC).

After the dental assistant inquired about safety measures and protection, the practice rescinded a rehire offer. Both employees were terminated by the practice.

OSHA determined the employer had retaliated against the workers for raising health and safety concerns, violating the employees’ rights under the Occupational Safety and Health Act of 1970. The DOL filed suit in July 2021 in the U.S. District Court for the Northern District of Texas, Fort Worth Division.

The Bohannans and Roger H. Bohannan DDS Inc. agreed to pay the back wages, and the court entered a consent judgment on February 3. The judgment forbids the employer from future violations of the OSH Act and requires it to provide neutral work references for the wrongfully terminated employees.

“Like all workers, these two people had every right to speak up without the fear of losing their jobs,” Eric S. Harbin, OSHA’s Dallas regional administrator, said in an agency statement. “We want workers to know that OSHA is here to protect their rights, and we won’t hesitate to exercise our authority when they are violated.”

This is not OSHA’s and the Labor Department’s first whistleblower action against a dental practice concerning COVID-19 safety measures. Last year, the DOL 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.

Under the whistleblower protection provisions of the OSH Act, retaliation includes demotion, firing, layoff, or reduction of benefits, hours, or pay, as well as reassigning an employee to less desirable duties or excluding an employee from training opportunities.

Employee rights under the OSH Act extend beyond the right to speak up about a workplace hazard or request an OSHA inspection without fear of retaliation. The OSH Act’s other worker protections include the right to have personal protective or safety equipment, receive training, review records of workplace illnesses and injuries, and see the results of workplace hazard assessments.

OSHA enforces whistleblower protections under the OSH Act and 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.

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