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September 9, 2024
A New York federal court recently ruled that an eye care practice (Practice) and its owner illegally fired an employee who reported to state health officials that the Practice failed to implement COVID-19 protections.
Despite New York’s declaration of a state of emergency and despite implementing health and safety mandates as a result of COVID-19, the Practice allegedly failed to adhere to mandates, such as mask-wearing, social distancing, and other enhanced hygiene protocols. Specifically, the Practice allegedly (1) did not require employees or patients to wear masks; (2) continued to perform non-emergency procedures; (3) did not implement daily health screenings, like questionnaires or temperature checks; (4) did not require social distancing or enhanced cleaning procedures; (5) refused treatment to patients who asked the Practice’s owner to wear a mask; (6) threatened to terminate the employment of employees if they discussed COVID-19 in the workplace; (7) threatened to terminate the employment of employees if they got tested for COVID-19 because the Practice’s owner did not want the health department to investigate the Practice; and (8) required employees to work even if their household members tested positive for COVID-19.
After two patients of the Practice complained to the State, the County Sheriff’s Department investigated the Practice, observed that employees were not wearing masks, and admonished the Practice. Still, the Practice allegedly failed to take COVID-19 precautions.
Then, an Ophthalmology Technician, who performed exams and other medical tasks requiring her to be face-to-face with or in close proximity to patients and coworkers of the Practice, complained to her supervisor about the Practice’s failure to follow the State’s mandates. When the Practice refused to change, the Technician filed two complaints with the New York State Department of Health. On the same morning that the health department contacted the Practice about the complaints, the Practice fired the Technician, expressly telling her that the Practice was terminating her employment because of her reports to the State.
The following day, the Technician filed a whistleblower complaint with the Occupational Safety and Health Administration (OSHA). After OSHA investigated, it filed a lawsuit against the Practice and its owner for retaliation under the Occupational Safety and Health Act of 1970 (OSH Act).
In defense, the Practice and its owner alleged, among other things, that the State mandates required only that masks be made available to employees (and that it complied with that mandate) and that the Practice permitted employees to wear masks. The Practice and its owner also alleged that it terminated the Technician’s employment because her reports to the State were false.
In ruling on motions from both parties to dismiss the case in their favor prior to trial, a federal judge in New York found that the Practice and its owner had retaliated against the Technician based on her protected activity. The court permanently forbade the Practice and its owner from future violations of the OSH Act’s anti-retaliation provisions and required them to post prominently a notice for employees stating that they will not discharge or in any manner discriminate against any employee for engaging in activities protected by the Act. The court also ordered the Practice’s owner to pay a contempt fine of $1,250 to the court for discovery violations.
The court will hold a hearing on the Department of Labor’s request that the Practice and its owner pay damages to the Technician (nearly $800,000) for all lost wages and benefits resulting from her unlawful firing; reimburse her for costs, expenses, other pecuniary losses incurred, as well as compensation for non-economic losses, including emotional distress; and pay exemplary or punitive damages.
The case is Martin J. Walsh (Secretary of Labor for the U.S. Department of Labor) v. Dr. David Kwiat and Kwiat Eye and Laser Surgery PLLC, No. 1:22-cv-00264 (AMN/DJS) (N.D.N.Y).
Employers: Workers have the right to raise safety and health concerns internally and to federal agencies without fear of retaliation. Follow State mandates. Take all employee complaints seriously. Heed the advice of, and cooperate with, investigators. Seek legal counsel for help.
*Special thanks to Nella Venella, our paralegal, for her contributions to this article.
The author of this article, Patricia Tsipras is a member of the Bar of Pennsylvania This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in Pennsylvania, New York, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
