## Facts

- Kristie Ho was an at-will registered nurse employed by Tulsa Spine & Specialty Hospital since 2012 and received strong performance reviews shortly before the events at issue.
- In March 2020, the Governor declared a statewide COVID-19 emergency and issued temporary orders postponing elective surgeries, later extending the moratorium through April 30, 2020.
- Ho alleged the hospital continued performing elective surgeries during the moratorium and required pre- and post-operative care without adequate personal protective equipment.
- During the week of April 6, 2020, the hospital furloughed all employees in Ho’s outpatient pre-operative unit except Ho, leaving her as the only nurse in that unit.
- Ho told her manager and human resources that the situation was unsafe and that the hospital’s practices violated the elective-surgery moratorium; she asked to stay home until the moratorium expired.
- Ho alleged HR warned that if she did not return to work, her absence would be treated as a resignation; she did not return, and the hospital terminated her.
- Ho sued for wrongful discharge in violation of public policy under Oklahoma’s Burk tort theory, relying on the emergency orders and legislatively expressed public-health policy.

## Issues

1. Whether the Governor’s temporary COVID-19 emergency orders, issued pursuant to legislative authorization, can express a clear mandate of Oklahoma public policy sufficient to support a Burk wrongful-discharge claim.
2. Whether Ho’s petition plausibly alleged a discharge significantly motivated by her refusal to work under conditions she believed violated the emergency orders and threatened public health.

## Decision

- The Oklahoma Supreme Court reversed the district court’s dismissal and remanded for further proceedings.
- The court held that the emergency orders, when issued under express legislative authority and aimed at controlling infectious disease, could supply the public-policy predicate for a Burk claim for the limited period the moratorium was effective (March 24 to April 30, 2020).
- Accepting Ho’s allegations as true at the pleading stage, the court held she stated a cognizable Burk claim by alleging termination tied to her refusal to work in conditions allegedly violating the moratorium and lacking adequate PPE.
- A partial dissent would have affirmed dismissal, reasoning executive orders should not be treated as sufficient sources of Burk public policy.

## Legal Principles

- Oklahoma at-will employment permits termination for any reason or no reason, subject to a narrow tort exception when discharge significantly contravenes a clear mandate of Oklahoma public policy (the Burk tort).
- For Burk purposes, public policy must be clearly articulated in constitutional, statutory, or decisional law (and, in limited circumstances, federal constitutional norms).
- Executive orders do not create public policy by themselves, but may serve as vehicles to enforce legislatively expressed public policy when grounded in statutory authorization.
- On a motion to dismiss, courts accept well-pleaded factual allegations as true; a Burk claim survives if the petition plausibly alleges discharge significantly motivated by conduct consistent with the identified public policy.

## Conclusion

The court recognized that statutorily authorized, temporary COVID-19 emergency orders postponing elective surgeries could supply the clear public-policy mandate needed for a Burk wrongful-discharge claim during their effective period, and it held the nurse’s allegations were sufficient to proceed beyond the pleading stage.


Ho v. Tulsa Spine & Specialty Hosp., L.L.C., 2021 OK 68, 507 P.3d 673 (Okla. 2021)