OSHA Investigation Finds Ophthalmologist & Practice Retaliated Against Whistleblower; DOL Files Lawsuit

Device seen at the ophthalmologist's office to measure vision

The U.S. Department of Labor (DOL) filed a lawsuit on March 17 alleging that Dr. David Kwiat and his practice Kwiat Eye and Laser Surgery, PLLC (KELS), engaged in retaliation against an employee who raised concerns about safety conditions regarding COVID-19 precautions in 2020 and early 2021. The complaint asks that the court order the employee to be paid damages and offered to return to her position, among other requests.

The lawsuit states that between March 2020 and December 2020, Jenna Coolman, a former Ophthalmology Technician at KELS, “repeatedly complained to her supervisor, Kim Morey,” about Dr. Kwiat and KELS’ “failure to follow New York State-mandated health and safety protocols, such as requiring the use of face masks.” According to the document, KELS and Dr. Kwiat did not take action to correct the unsafe practices in the office; thus, Coolman filed two complaints with the New York State Department of Health (NYSDOH) between December 2020 and January 2021. Her complaints reported the unsafe working conditions at KELS.

The lawsuit states that Coolman was then contacted by NYSDOH on February 24, 2021, via phone. On the same morning, “Dr. Kwiat confronted Ms. Coolman, accused her of complaining to NYSDOH, and fired her on the spot.” According to the lawsuit, Dr. Kwiat “directly and explicitly informed Ms. Coolman that the reason for her termination” was because of the complaints she made to NYSDOH.

According to the lawsuit, between March 2020 and February 24, 2021, Dr. Kwiat and KELS did not require employees or patients to wear face masks or face coverings; additionally, during the aforementioned time period, “if patients asked Dr. Kwiat to wear a mask, the Defendants [Dr. Kwiat and KELS] refused to treat them and removed them from their practice.” There were no social distancing or “enhanced COVID cleaning protocols” during that time period, according to the lawsuit. Additionally, “Defendants threatened to terminate employees who talked about COVID at the workplace” or employees who took COVID tests during the specific time period, “because Dr. Kwiat stated he did not want the medical practice to be investigated by the health department.”

The lawsuit also states that during this time, employees who had family members who tested positive for COVID were required to come into work. According to the lawsuit, at least two patients of KELS and Dr. Kwiat complained to the state’s PAUSE Enforcement Assistance Task Force, PAUSE being a set of COVID-related safety mandates like requiring face masks, quarantining requirements after a COVID exposure, etc. Even after a Montgomery County Sheriff’s Office investigation in which Dr. Kwiat was “admonished…for refusing to require the use of masks,” the Defendants made no changes to the safety procedures.

A day after being terminated, Coolman “timely filed a whistleblower complaint” with the DOL’s Occupational Safety and Health Administration (OSHA). OSHA’s Whistleblower Protection Program enforces 25 whistleblower statutes, conducts investigations, and issues decisions regarding whistleblowers. Coolman’s OSHA complaint alleged she has been fired for making her complaints related to unsafe COVID working conditions. OSHA commenced an investigation and on March 8, 2021, the agency sent Dr. Kwiat and KELS a notice of the complaint and requested more information. According to the lawsuit, Dr. Kwiat sent a letter to the DOL’s Office of the Inspector General in which he made “various unfounded claims and refusing to provide information to OSHA” but also admitted “that Ms. Coolman was fired as a result of her complaint to the NYSDOH.”

OSHA came to the determination that Dr. Kwiat and KELS “violated section 11(c)(1) of the OSH Act, 29 U.S.C. § 660(c)(1), by terminating Ms. Coolman because she made good faith health complaints.” In the lawsuit, the agency asks the court to permanently enjoin and restrain “Defendants, their officers, agents, servants, employees, and those persons in active concert or participation with them from violating the provisions of section 11(c)(1) of the Act, 29 U.S.C. § 660(c)(1).”

The agency also asks that the court orders the Defendants “to pay damages to Ms. Coolman for all lost wages and benefits that resulted from her unlawful termination,” offer to reinstate her to the position she previously held “with full benefits and other prerequisites of employment, and without any break in seniority” or “provide appropriate front pay (economic reinstatement) in lieu of reinstatement.” Additionally, the agency asks that Coolman be compensated for “any costs, expenses, and/or other pecuniary losses she incurred as a result of Defendants’ unlawful discriminatory actions” as well as “non-pecuniary losses, including emotional distress.” OSHA asks that the court order Coolman to be paid “prejudgment interest” and “exemplary or punitive damages” as well.

OSHA also requests that Dr. Kwiat and KELS post a notice for all employees to see stating that they “will not discharge or in any manner discriminate against any employee for engaging in activities” that are protected by the OSH Act’s section 11(c) of the Act, 29 U.S.C. § 660(c), which prohibits employers from retaliating against employees “for raising health and safety concerns and for reporting work-related injuries and illnesses,” according to this fact sheet.

The lawsuit requests a “jury trial in this matter on all issues triable by jury.”

“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,” said OSHA Regional Administrator Richard Mendelson in New York in the April 17 news release about the lawsuit.

Regional Solicitor of Labor Jeffrey S. Rogoff in New York highlighted the DOL’s attitude towards whistleblower retaliation cases: “Pursuing retaliation cases such as this one remains a priority for the U.S. Department of Labor. 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.”

In 2020, the first year of the COVID-19 pandemic in the U.S., whistleblowers filed 3,448 retaliation complaints with OSHA’s Whistleblower Protection Program, a fiscal year record. The number of whistleblower complaints received in 2020 was a 25% increase from Fiscal Year 2019.

Read the DOL’s lawsuit here.

Read the news release here.

Read more about filing whistleblower complaints under the OSH Act’s anti-retaliation provisions here.

Read more employment/OSHA news on WNN.

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