Dentist Examined by OSHA Inspectors

This is one dental examination that the dentist did not want to do.  OSHA drilled down to extract compliance violations which became evident when two furloughed employees, dental hygienists, filed a complaint with OSHA.

Here is what happened:  The dentist, through his dental practice, furloughed all its employees at the height of the pandemic when the state of Texas prohibited specific dental procedures in its attempt to mitigate the spread of the virus.  After the furlough ended, the dentist made some phone calls.  He called the hygienists.  After receiving a call to return to work, the dentist (the employer) did not reinstate the hygienists after they cited guidance from the Centers for Disease Control and Prevention and Occupational Safety and Health Administration. The dental assistant was contacted for rehiring but the dentist rescinded the offer after the assistant inquired about what safety measures were in place for their protection.  An OSHA investigation found the dentist and his practice had discriminated against the employees when he retaliated against these employees who “blew the whistle” on the dental practice for failing to respond to requested safety measures in response to COVID-19 concerns.

On behalf of the dental hygienist and the dental assistant, the U.S. Department of Labor took legal action against the dentist by filing a lawsuit in the U.S. District Court in the Northern District of Texas.  The complaint asks the court to order the dental practice to do the following:

• Pay the complainant damages, plus interest, for all past and future lost wages and benefits resulting from the termination;
• Reimburse for costs and expenses; and, pay compensatory damages, including for compensation for emotional pain and distress and exemplary or punitive damages in an amount to be determined at trial, and
• Post a notice for employees stating that the defendants will not in any manner discriminate against any employee for engaging in activities protected by Section 11(c) of the OSH Act and for engaging in the protected activity of making a good faith health and safety complaint.

Failing to hire or rehire under these facts is considered an act of retaliation under the law.  The dentist and his dental practice “… violated employees’ rights by terminating them for reporting concerns about unsafe working conditions,” said OSHA Regional Administrator Eric S. Harbin in Dallas, Texas.   He continued, “Workers should not fear losing their job because they raise safety concerns within the workplace. The Labor Department will continue to vigorously enforce these protections.”   The Regional Solicitor of Labor John Rainwater also in Dallas, Texas stated that  “Employees have the right to raise valid health and safety concerns, especially those related to the coronavirus and are protected by law against retaliation by employers.”

OSHA enforces the whistleblower provisions of the OSH Act and 24 other statutes protecting employees who report violations.  For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.