Governor's COVID-19 orders expressed public policy exception to at-will employment

 When can an at-will employee challenge an employment termination? One way is to show that the termination was a violation of public policy.

Ha! Judges don’t always agree on what is a “public policy.”

A nurse – an at-will employee – filed an action for wrongful discharge alleging that the employer terminated her in violation of public policy. Ho v. Tulsa Spine & Specialty Hosp (Oklahoma 12/14/2021) [PDF].

She claims she was fired because she declined to come to work without adequate and appropriate personal protective equipment or to provide nursing services for elective surgeries when, to do so, was a violation of the Governor's executive order banning such surgeries.

The trial court dismissed her case because she was an employee-at-will and failed to state a claim.

The Oklahoma Supreme Court reversed (5-4).

The court said that in order to establish a public policy exception "the plaintiff must identify an Oklahoma public policy goal that is clear and compelling and is articulated in existing Oklahoma constitutional, statutory or jurisprudential law."

The court found that the Legislature "expressly delegated" to the Governor the authority to issue temporary emergency executive orders relating to emergencies such as the COVID crisis, and these orders established a "public policy of curtailing infectious disease."

Four dissenting Justices wrote three opinions essentially arguing that the public policy exception should be narrowly drawn and that the Governor's orders were not clear and compelling and not an articulation of "constitutional, statutory or jurisprudential law."