A new U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) lawsuit against two North Texas dentists warns health industry and other employers to tread carefully when dealing with employees about COVID-19 or other safety concerns.
The charges arises from the dental practice’s failure to reinstate a dental hygienist and a dental assistant who expressed concerns about the coronavirus safety measures the practice would implement when it reopened in Spring 2020. The lawsuit filed in the U.S. District Court for the Northern District of Texas, Fort Worth Division, names Roger H. Bohannan, DDS Inc. and owners Roger Bohannan and David Bohannan.
In March and April 2020, OSHA says Roger Bohannan and David Bohannan, owners of Roger H. Bohannan DDS Inc. furloughed their employees after the state of Texas prohibited specific dental procedures at the height of the pandemic. While furloughed, the two employees asked what safety measures would be in place once patients and employees returned. After receiving a call to return to work, the employer did not reinstate the hygienist after the employee cited guidance from the Centers for Disease Control and OSHA.
The dental assistant was contacted for rehiring but the employer rescinded the offer after the assistant inquired about what safety measures were in place for their protection.
An OSHA investigation found Bohannan Dentistry discriminated against the employees for exercising their rights under section 11(c) of the Occupational Safety and Health Act and for engaging in the protected activity of making a good faith health and safety complaint. The two employees were not rehired while all of the other staff members at the North Richland Hills practice were reinstated when the furlough ended.
OSHA charges that Bohannan Dentistry violated employees’ rights by terminating them for reporting concerns about unsafe working conditions.
The complaint asks the court to order the dental practice to:
- Pay the complainant damages, plus interest, for all past and future lost wages and benefits resulting from the termination; reimbursement for costs and expenses; compensatory damages, including for compensation for emotional pain and distress and exemplary or punitive damages in an amount to be determined at trial.
- 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.
The lawsuit highlights the OSHA retaliation exposure employers could face if found to retaliate against employees for expressing concern about COVID or other safety. This is just one on the many minefields employers face dealing with employees in relation to COVID-19 safety concerns, leave, vaccination, remote work, return to work, benefits and other concerns. Health care and other employers are urged to work closely with experienced employment counsel to decide and administer their policies and responses.
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About the Author
Recognized by her peers as a Martindale-Hubble “AV-Preeminent” (Top 1%) and “Top Rated Lawyer” with special recognition LexisNexis® Martindale-Hubbell® as “LEGAL LEADER™ Texas Top Rated Lawyer” in Health Care Law and Labor and Employment Law; as among the “Best Lawyers In Dallas” for her work in the fields of “Labor & Employment,” “Tax: ERISA & Employee Benefits,” “Health Care” and “Business and Commercial Law” by D Magazine, Cynthia Marcotte Stamer is a practicing attorney board certified in labor and employment law by the Texas Board of Legal Specialization and management consultant, author, public policy advocate and lecturer widely known for 30+ years working as an on demand, special project, consulting, general counsel or other basis with domestic and international business, charitable, community and government organizations of all types, sizes and industries and their leaders on labor and employment and other workforce compliance, performance management, internal controls and governance, compensation and benefits, regulatory compliance, investigations and audits, change management and restructuring, disaster preparedness and response and other operational, risk management and tactical concerns.
Most widely recognized for her work with health care, life sciences, insurance and data and technology organizations, she also has worked extensively with health plan and insurance, employee benefits, financial, transportation, manufacturing, energy, real estate, accounting and other services, public and private academic and other education, hospitality, charitable, civic and other business, government and community organizations. and their leaders.
Ms. Stamer has extensive experience advising, representing, defending and training domestic and international public and private health care and life sciences, charitable, community and governmental, and other business organizations and their leaders, employee benefit plans, their fiduciaries and service providers, insurers, and others. A widely published author and popular speaker, Ms. Stamer also has published and spoken extensively on wage and other and other health care, human resources, employee benefits and other workforce and services; insurance; workers’ compensation and occupational disease; business reengineering, disaster and distress; and many other compliance, governance, risk management, operational and public and regulatory affairs concerns.
A former lead advisor to the Government of Bolivia on its pension project, Ms. Stamer also has worked internationally and domestically as an advisor to health, managed care, insurance, and other business, community and government leaders on these and other legislative, regulatory and other legislative and regulatory design, drafting, interpretation and enforcement, as well as regularly advises and represents organizations on the design, administration and defense of workforce, employee benefit and compensation, safety, discipline, reengineering, regulatory and operational compliance and other management practices and actions.
Ms. Stamer also serves in leadership of a broad range of professional and civic organizations and provides insights and thought leadership through her extensive publications, public speaking and volunteer service with a diverse range of organizations including as Chair of the American Bar Association (“ABA”) Intellectual Property Section Law Practice Management Committee, Vice Chair of the International Section Life Sciences and Health Committee, Past ABA RPTE Employee Benefits & Other Compensation Group Chair and Council Representative and current Welfare Benefit Committee Co-Chair, Past Chair of the ABA Managed Care & Insurance Interest Group, past Region IV Chair and national Society of Human Resources Management Consultant Forum Board Member, past Texas Association of Business BACPAC Chair, Regional Chair and Dallas Chapter Chair, former Vice President and Executive Director of the North Texas Health Care Compliance Professionals Association, past Board President of Richardson Development Center (now Warren Center) for Children Early Childhood Intervention Agency, past North Texas United Way Long Range Planning Committee Member, past Board Member and Compliance Chair of the National Kidney Foundation of North Texas, a Fellow in the American College of Employee Benefit Counsel, the American Bar Foundation and the Texas Bar Foundation and many others.
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