Opinion:Ho v. Tulsa Spine & Specialty Hospital, 2021 OK 68
Subject matter:Employment Law
Date Decided:December 14, 2021
Trial Court:District Court of Tulsa County; Judge Musseman
Route to this Court:Appeal of an order dismissing the case; retained by Oklahoma Supreme Court. 
Facts:The appellant, Kristi Ho, a nurse, sued her employer, the appellee, Tulsa Spine & Specialty Hosptial, L.L.C., alleging that the Hospital fired her because she would not come to work. She refused to go to work because of concern for her health and safety. She alleged the Hospital violated the Governor’s directive to discontinue elective surgeries for a short time during a COVID-19 pandemic, and it did so without providing her proper personal protective equipment. The Hospital filed a motion to dismiss, arguing that the nurse was an employee-at-will, and that she failed to state a claim for wrongful discharge under Oklahoma law. The trial court agreed, and dismissed the lawsuit. 
Standard of Review:De Novo. 
Analysis:The critical purpose of the temporary emergency orders was to protect the public, patients, and hospital staffs, and to reduce the chances of contracting and spreading the unprecedented contagious disease. The ban on elective surgeries was only in effect for March 24, 2020 to April 30, 2020. At the time that the Governor issued the emergency orders, he did so within the full authority statutorily granted by the Legislature pursuant to 63 O.S. 2011 §6403, and §§683.1 and 683.9. The orders were limited to the time of a catastrophic health emergency. The orders expressed the public policy of the State of Oklahoma for the period the orders were effective, pursuant to the exception of Burk v. K-Mart Corp., 1989 OK, ¶17, 770 P.2d 24, and its progeny. Although the orders were short-lived, they expressed public policy at the time.However, there are operative facts left to be determined. Here, the hospital denies that it was providing elective surgeries, or inadequate equipment to provide a healthy and safe work environment under the conditions which existed at the time. We express no opinion concerning the hospital’s possible liability in this cause. The hospital disputes whether the nurse’s firings had anything to do with her allegations. The facts regarding what equipment was provided, whether equipment was available, what surgeries were performed, what surgeries were elective, what is an elective surgery, and what the nurse might have been exposed to, have not yet been fully presented because of the dismissal for failure to state a claim.
Vote:KAUGER, EDMONDSON, COMBS, GURICH, KUEHN (by separate writing), JJ., concur.DARBY, C.J., KANE, V.C.J. (by separate writing), WINCHESTER (by separate writing), ROWE (by separate writing), JJ., dissent.
Other: Four separate writings issued with this opinion.