US Department of Labor sues New York ophthalmologist, practice for firing employee who reported COVID-19 hazards

ALBANY, NY – The U.S. Department of Labor filed suit against a New York ophthalmologist and his practice in Amsterdam for allegedly firing an employee who raised concerns about the practice’s failure to implement state-mandated protocols to protect employees from COVID-19, and later filed complaints with state health officials.

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

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

“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.

“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,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York.

The department asks the court to enjoin the defendants permanently from future violations of the OSH Act’s anti-retaliation provisions and order them to:

• Pay damages to the complainant for all lost wages and benefits resulting from their unlawful termination.
• Offer to reinstate complainant to their 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 non-economic 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.

OSHA’s Division of Whistleblower Protection Programs in New York conducted the investigation. Senior Trial Attorney Alexander M. Kondo and Attorney Audrey-Marie Winn of the Regional Office of the Solicitor in New York are litigating the case.

OSHA enforces the whistleblower provisions of the Occupational Safety and Health Act and 24 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, motor vehicle safety, healthcare reform, nuclear, pipeline, public transportation agency, railroad, maritime, securities, tax, antitrust, and anti-money laundering laws and for engaging in other related protected activities. For more information on whistleblower protections, visit OSHA's Whistleblower Protection Programs webpage.

Walsh v. Dr. David Kwiat and Kwiat Eye and Laser Surgery, PLLC.

Civil Action No. 1:22-cv-264 (LEK/DJS)