If true, firing nurse for missing work due to influenza violates Oklahoma public policy
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Monday, March 14, 2016

If true, firing nurse for missing work due to influenza violates Oklahoma public policy

By Brandi O. Brown, J.D. A licensed practical nurse allegedly fired by a nursing home after calling out sick for three days after being diagnosed with influenza was given a renewed chance to pursue his wrongful discharge lawsuit when the Oklahoma Supreme Court ruled that termination for that reason would violate public policy. To conclude otherwise “would exacerbate communicable disease and expose the most vulnerable people.” However, because the employee might have been fired for other reasons, summary judgment was improper and a jury’s input was necessary. Judge Winchester, joined by Judge Taylor, filed a dissenting opinion (Moore v. Warr Acres Nursing Center, LLC, March 8, 2016, Kauger, Y.). Got the flu, was fired. According to the employee, he became acutely ill while at work on November 25 and was sent home. He went directly to his physician who diagnosed him with influenza and provided him a written notice to take off work for three days because of his illness. Thereafter, the employee he reported his illness and the doctor's directions. He also offered to work during the upcoming weekend if he was better. Otherwise, he would report to work on Monday. When the employee arrived at the nursing center on November 30 to deliver his note, he learned that he had been crossed off the work schedule for the upcoming week. He was then fired on December 3, 2008. The employee filed suit against the nursing center alleging that his discharge was unlawful and wrongful and had been based on him not being at work while suffering from influenza. Dismissals and appeals. The employer asserted that in the employee’s ten months of employment with the center he had been written up at least five times for failure to follow instructions, failure to complete tasks, rumor-spreading, and otherwise rebellious behaviors. He was also accused of being belligerent. The employer filed a motion to dismiss his lawsuit, which was granted. The employee appealed and the decision was reversed and the matter remanded to allow the employee to provide specific legal authorities to support his public policy argument. The employer’s subsequent motion to dismiss was also successful and the employee again appealed. The case was again reversed and remanded. The employer filed a motion for summary judgment, which the court granted. The employee appealed and the Supreme Court retained the cause to address the public policy exception. At the outset the court noted that the alleged facts, including the employee’s disciplinary record, indicated that he “could certainly have been legally terminated by the employer.” Given his record, the court explained, the discharge “likely was neither pretextual, post hoc rationalization, nor a violation of public policy.” Nevertheless, summary judgment had been granted based on the lower court’s finding that there was no violation of public policy and not on the plaintiff’s employment history. Rather, the employer had insisted that no cause of action existed. Therefore the court concluded that there were material fact questions for a jury to decide. Public policy exception. For purposes of summary judgment, the employer admitted and accepted the version of facts presented by the employee. It argued, however, that as a matter of law the employee had no claim because he was an at-will employee. In turn, the employee had argued that he was fired only because he had not worked while he had the flu and that this fell within an exception to at-will employment first pronounced by Burk v. K-Mart Corp. In Burk the Oklahoma Supreme Court had adopted a public policy exception to the rule of at-will termination for a “narrow class of cases” wherein the termination was “contrary to the clear mandate of public policy as articulated by constitutional, statutory, or decisional law” or, the court added, “in a federal constitutional provision that prescribes a norm of conduct for Oklahoma.” Infection control in nursing homes. Public health codes articulated a “well-defined, firmly established, state public policy prohibiting a nurse from working while infected with the influenza.” Article 5 of the Oklahoma Constitution directed the legislature to create a Board of Health and vested in the legislature the power to establish agencies such as the Oklahoma Health Department. The legislature delegated rule making authority to those agencies and those rules were “binding similar to a statute and are only created within legislatively-granted authority and approval.” Such delegation had been recognized by the Court in earlier decisions, which noted that administrative rules were “valid expressions of lawmaking powers having the force and effect of law.” Such was the case with the Department of Health’s Regulations implementing the Nursing Home Care Act, the court explained, which covers infection control and requires nursing home facilities to have policies in place regarding infection control. Federal law. Furthermore, the court noted, federal law regulates the states with regards to infectious disease control. Federal quality of care standards also require development of certain policies and procedures for nursing homes to ensure that residents are protected from influenza. Although it was clear that “there are not constitutional, statutory or caselaw public policy manifestations which would prohibit a registered nurse from working with the flu” the case was very similar to an earlier decision, Silver v. CPC-Sherwood Manor, Inc., in which the court had recognized a public policy exception in the case of a cook who was fired for going to the ER with diarrhea. The nurse in this case, the court explained, was “in a better position” even than that plaintiff because the nurse had been diagnosed by a physician as having a communicable disease. Therefore, based on the state constitution, the statutes, regulations approved by the federal and state legislature, and the employer’s own rules and regulations, the court concluded that a public policy exception existed that would disallow a nurse from being fired only because he did not work while infected with the flu. Dissent. In a dissent joined by Justice Taylor, Justice Winchester faulted the majority for issuing an opinion that “clearly impacts and restricts employment-at-will” by expanding the public policy exception to include administrative rules and regulations, including Federal ones. Justice Winchester contended that the majority’s opinion was not supported by the rule of stare decisis, which he found particularly troubling in light of the court’s earlier attempts to restrict the exception. Furthermore, Justice Winchester contended that the majority presented a new rule by improperly concluding that agency rules “are somehow equivalent to statutory law.” “Public policy,” he explained, “cannot be delegated to an administrative agency.” To conclude otherwise would put the lie to the description of a Burk tort “as a ‘tightly circumscribed framework.’”

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