Workers' Compensation: OSHA Cites Dental Practice for Coronavirus Retaliation

The U.S. Department of Labor has taken legal action against two North Texas dentists on behalf of a dental hygienist and a dental assistant who were not reinstated after expressing concerns about what coronavirus safety measures would be in place when the practice reopened in spring 2020.

In March and April 2020, 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 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 The dental assistant was contacted for rehiring but the employer rescinded the offer after the assistant inquired about what safety measures were in place for their protection.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.

“Bohannan Dentistry violated employees’ rights by terminating them for reporting concerns about unsafe working conditions,” said OSHA Regional Administrator Eric S. Harbin in Dallas. “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.”

Filed in the U.S. District Court for the Northern District of Texas, Fort Worth Division, the department’s suit names Roger H. Bohannan, DDS Inc. and owners Roger Bohannan and David Bohannan. 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; 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.

“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,” said Regional Solicitor of Labor John Rainwater in Dallas. “The U.S. Department of Labor is dedicated to ensuring safe and healthful working conditions as the Occupational Safety and Health Act requires.”

OSHA enforces the whistleblower provisions of the OSH 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, and securities laws. For more information on whistleblower protections, visit OSHA’s Whistleblower Protection Programs webpage.

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Jon L. Gelman of Wayne NJ is the author of NJ Workers’ Compensation Law (Thomson-Reuters) and co-author of the national treatise, Modern Workers’ Compensation Law (Thomson-Reuters). For over 4 decades the Law Offices of Jon L Gelman 1.973.696.7900 jon@gelmans.com has been representing injured workers and their families who have suffered occupational accidents and illnesses.