On September 14, 2011, the U.S. Department of Labor filed a lawsuit against Massachusetts dentist Terry Fayad for allegedly firing an employee for filing a health hazard complaint with the department's Occupational Safety and Health Administration. According to dental assistant Rhonda Healy, Fayad discharged her in November 2010 after she raised concerns about an office procedure involving the disposal of contaminated needles. Healy claims that Fayad had workers remove protective caps from contaminated needles prior to putting the needles in the disposal sharps containers, which the complaint states exposes employees to injury and possible infection by bloodborne pathogens such as hepatitis and HIV. The lawsuit alleges that 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."
"This is the kind of legal development that on the surface smacks of over-regulation, and I think that's how most dentists will immediately perceive it," states DOCS Education's Regulatory Counsel, John Bitting. "I'd encourage people to step back and take note of the larger trend. They shouldn't assume the matter won't affect them because they don't live in Massachusetts. Take the matter of tooth whitening in North Carolina. That's another example of something that was a state matter but has become a federal issue. Is this temporary or the beginning of a new era? We can't really say right now."
The U.S. Department of Labor's regulations regarding this issue require the use of engineering and work practice controls to eliminate or minimize employee exposure to bloodborne pathogens. OSHA's Exposure Control Plan of The Needlestick Safety and Provision Act solicits input from non-managerial employees whom, among other things, are potentially exposed to injuries from contaminated sharps. OSHA enforces the whistleblower provisions of the OSH Act and 20 other statutes protecting employees who report violations of various industry laws. Under these laws, employers are prohibited from retaliating against employees who raise protected concerns or provide protected information to the employer or the government. Employees who believe they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program. The allegations against Fayad clearly violate these laws, and according to the Labor Department, Fayad has contested those citations and the accompanying $26,400 in proposed fines to the independent Occupational Safety and Health Review Commission. Information regarding bloodborne pathogens and preventing needlestick injuries can be found on the OSHA website.
