Federal court finds upstate New York eye doctor, practice illegally fired employee who reported lack of COVID protections to state health officials

Date of action:                       Aug. 6, 2024

Type of action:                      Decision and order 

Defendants:                           Kwiat Eye and Laser Surgery PLLC 

                                                      Dr. David Kwiat

                                                      100 Holland Circle Drive, Amsterdam, NY

 Allegations:                            After an Occupational Safety and Health Administration whistleblower investigation, the U.S. Department of Labor’s Office of the Solicitor filed suit against Dr. David Kwiat and his practice in March 2022, alleging they illegally fired an employee concerned about the practice’s failure to implement state-mandated protocols to protect employees from COVID-19, and later filed complaints with state health officials.

Resolution:                            The court agreed that defendants had retaliated against the employee based on protected activity. The court permanently forbid Kwait and the practice from future violations of the Occupational Safety and Health Act’s anti-retaliation provisions and required them to prominently post a notice for employees stating that the employers will not discharge or in any manner discriminate against any employee for engaging in activities protected by section 11(c) of the OSH Act. The court also ordered Kwiat is to pay a contempt fine of $1,250 to the court for discovery violations.

The court will hold a hearing on the department’s request that the doctor and the practice pay damages to the terminated worker for all lost wages and benefits resulting from their unlawful firing; reimburse them for costs, expenses, and other pecuniary losses incurred, and compensation for non-economic losses, including emotional distress; and pay exemplary or punitive damages.

Court:                                     U.S. District Court for the Northern District of New York

Docket Number:                    1:22-cv-00264 (AMN/DJS)

Quotes:                                   “The court’s decision reinforces the Occupational Safety and Health Act’s guarantee that workers have the right to raise safety and health concerns to their employers and file complaints with OSHA and other regulatory agencies without fear of termination and retaliation and the chilling effect such actions have on workers’ coming forward with concerns about health and safety hazards in their workplaces,” said OSHA Regional Administrator Richard Mendelson in New York.

                                                “As this case shows, the U.S. Department of Labor will use all enforcement tools available, including litigation, to stop employer conduct that denies workers their legal rights to voice their concerns and file complaints about potential health and safety hazards in their workplace,” said Regional Solicitor of Labor Jeffrey S. Rogoff in New York.

Background:                          The OSHA New York Region’s Whistleblower Protection Program conducted the investigation. Senior Trial Attorney Bertha M. Astorga in the Regional Office of the Solicitor in New York is 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.