Nurse refused to come into work during COVID-19 state of emergency
By Janice Francis-Smith
BridgeTower Media Newswires
OKLAHOMA CITY – Oklahoma Supreme Court justices on the losing side of a recent 5-4 split decision contend the ruling could weaken Oklahoma’s at-will employment law and the right of employers to manage their businesses.
The majority voted to allow a nurse her day in court, suing her employer for firing her when she refused to come in to work during the COVID-19 state of emergency, under unsafe conditions and in violation of the governor’s executive order in place at the time, the nurse contends.
In April 2020, much of the world was shut down under stay-at-home orders. Gov. Kevin Stitt had just issued the fourth amendment to his executive order, directing medical providers to postpone all elective surgeries until the end of the month.
The Tulsa Spine & Specialty Hospital LLC furloughed all the employees in the outpatient pre-operative unit with the exception of Kristie Ho, a nurse who had worked for the hospital for nearly eight years. Just two months prior – before the pandemic struck Oklahoma – Ho had received a glowing “excellent performance” review that characterized her as “accountable, dependable, a great mentor and teacher, with a strong work ethic.”
Ho claims that on April 10, the hospital continued to perform elective surgeries despite the governor’s order and required her to render her services without adequate personal protective equipment. On April 12, Ho contacted her manager to report that a fellow employee who had tested positive for COVID-19 had been hospitalized, and informed her manager that she would not come to work the following day due to her concerns over unsafe working conditions and the governor’s executive order.
After a number of communications with the manager and the human resources director, Ho was fired on April 27, 2020.
The district court granted summary judgement to the hospital, finding that Oklahoma’s at-will employment law allows an employer to “discharge an employee for good cause, for no cause or even for cause morally wrong, without being guilty of a legal wrong.” However, a termination found to be based on a reason that violates a clearly established public policy – such as based on race or sex – would be exempt from legal protection.
Ho appealed.
The Oklahoma Supreme Court agreed to take up the appeal in order to address the legal question of whether the governor’s temporary emergency COVID-19 orders qualify as “public policy,” which could provide an exception to at-will employment.
“We hold that because the Legislature expressly granted the Governor authority to issue temporary emergency orders, and the orders expressed the established public policy of curtailing an infectious disease, the exception to at-will employment as articulated by Burk v. K-Mart Corp,” ruled the majority of Oklahoma Supreme Court justices.
The Burk case cited established that an employer may not use at-will employment as an excuse to fire an employee in violation of “an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law.”
“Reducing the spread of infectious, contagious, and potentially deadly diseases has always been a priority and concern of the State of Oklahoma, and Federal government regardless of the novelty of the disease,” the court found.
“The Oklahoma Legislature expressly authorized the Governor to issue temporary health orders during a catastrophic outbreak. He did so, and the orders which were only effective from March 24, 2020, to April 30, 2020.”
The court noted that the ruling does not express an opinion as to whether or not Ho will be successful in her court challenge; the ruling merely allows her to take her case to a court that can review the facts of the case.
Justices Yvonne Kauger, James E. Edmondson, Douglas L. Combs, Noma Gurich and Dana Kuehn voted in the majority. Chief Justice Richard Darby, M. John Kane IV, James R. Winchester and Dustin P. Rowe dissented.
“My complaint with the majority is that it cannot tell a hospital, doctor, or patient which surgeries or procedures were elective during the time that the executive order was in place,” Winchester wrote in his dissent. “Common sense tells us that the hospital, doctor, and patient balanced the risks and benefits to determine whether to delay a surgery.
“The majority’s holding shifts the authority to the nurse – the employee – to decide whether she went to work thereby impacting the ability of the hospital and doctor to give necessary care to the patient; the decision to receive care during this time should have been between the doctor and patient,” Winchester wrote. “Consequently, the majority’s decision further erodes Oklahoma’s employment-at-will doctrine.”
Winchester asserted that the authority bestowed on the governor does not alone “make an executive order clear and compelling public policy” for the purpose of applying an exception to at-will employment.
“Even more, the purpose behind postponing elective surgeries was not necessarily to protect Nurse from an infectious disease while she worked, as the majority contends,” Winchester wrote. “Nurse was not even working in a hospital caring for COVID-19 patients. Instead, the postponement was mostly to guarantee there were adequate staffing, beds, and equipment at the hospitals that cared for COVID-19 patients…
“To refuse to attend work as an essential employee (who is healthy) due to the possibility of contracting COVID-19 (or any other communicable disease) and then be terminated does not rise to the level of this public policy exception,” Winchester wrote.
