Feds sue dentist for firing assistant over OSHA concerns

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A Massachusetts dentist is being sued by the U.S. Department of Labor for allegedly firing an employee for raising concerns about needlestick hazards and filing a health hazard complaint with the department's Occupational Safety and Health Administration (OSHA).

According to the complaint, filed September 14, 2011, in the U.S. District Court for the District of Massachusetts, N. Terry Fayad, DMD, of Beverly, MA, in November 2010 discharged Rhonda Healey, a dental assistant employed in his practice since 2002, after she raised concerns about an office procedure involving the handling of contaminated needles.

“Workers have the right to perform their jobs without being exposed to life-threatening hazards.”
— Marthe Kent, OSHA's New England
     regional administrator

As part of Healey's duties, she placed used, contaminated needles that had been protectively capped into a sharps container, according to the lawsuit. But in October 2010, Dr. Fayad changed the procedure so that workers were required to remove the protective caps from the contaminated needles before putting the needles into the disposal sharps containers, the complaint states.

Dr. Fayad changed the procedure so that more needles would fit in the sharps containers, "reducing the frequency of their disposal by Fayad's disposal service provider and saving Fayad money," the lawsuit alleges.

This procedure exposed the employees to injury and possible infection by bloodborne pathogens such as hepatitis and HIV, the complaint further states.

"No employer should ever treat employees this way," said Marthe Kent, OSHA's New England regional administrator, in a statement. "Workers have the right to perform their jobs without being exposed to life-threatening hazards, as well as the right to raise concerns when faced with such hazards. The Labor Department will take all appropriate legal steps to ensure these rights are enforced."

The lawsuit seeks the employee's reinstatement; payment of lost wages, benefits, and interest; and compensatory and punitive damages. The suit also seeks to enjoin Dr. Fayad from violating OSHA regulations in the future.

As of press time, neither Dr. Fayad nor his attorney, Brent Clark of law firm Seyforth Shaw in Chicago, had returned calls seeking comment.

This type of lawsuit is rare at the federal level, according to Ted Fitzgerald, acting regional director for public affairs with the U.S. Department of Labor office in Boston.

"With OSHA inspections in a medical or dental office, it is always possible that citations can be issued for violations of the bloodborne pathogen standard," he told DrBicuspid.com. "But in New England, these suits in general are rare, and I don't remember another one in my time dealing specifically with a dentist."

A separate OSHA health inspection of the dental practice begun on November 23, 2010, resulted in Dr. Fayad being cited for eight alleged serious violations of the agency's bloodborne pathogen and hazard communication standards, including having employees remove the caps from contaminated needles.

Dr. Fayad has contested those citations and the accompanying $26,400 in proposed fines to the independent Occupational Safety and Health Review Commission, according to the Labor Department.

Detailed information on bloodborne pathogens and preventing needlestick injuries is available on the OSHA website.

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