Employment law encompasses the legal framework governing the relationship between employers and employees. It covers a wide range of issues, including hiring, workplace conditions, compensation and termination. For non-employment law attorneys, understanding the basics of employment law is crucial, as these issues often intersect with other areas of legal practice. Whether advising a business client or representing an individual, a foundational knowledge of employment law can help you identify potential legal issues and guide clients effectively. This article is not intended to be a comprehensive primer on employment law but rather an overview of potential employment cases that non-employment lawyers may encounter. If you have an employee who was discharged, please reach out to an employment lawyer. The Oklahoma Employment Lawyers Association has a list of attorneys who practice plaintiff’s employment law (www.oela.org), as does the National Employment Lawyers Association (www.nela.org).

To begin, one overriding issue for clients with potential wrongful termination cases is that employees in Oklahoma, just as most employees in the United States, are employed at will.[1] This means that an employer can fire an employee for a good reason, a bad reason, no reason and, as the Oklahoma Supreme Court states, even a morally wrong reason.[2] An employer cannot, however, fire an employee for an illegal reason.

There are exceptions to employment-at-will. Oklahoma recognizes a wrongful termination action as a violation of an Oklahoma public policy. An employer cannot terminate an employee for a reason that is against “a clear mandate of public policy articulated by constitutional, statutory, or decisional law.”[3] This is commonly referred to as a Burk tort.[4] This means that general bullying, termination or other adverse treatment not based on a protected characteristic or a violation of Oklahoma public policy is not unlawful, and no cause of action against the employer is available.[5] Put simply, an employer cannot fire an employee for an illegal reason, such as a violation of employment laws, including the Americans with Disabilities Act and the Oklahoma Administrative Workers’ Compensation Act.

In short, many attorneys who practice in the areas of personal injury or workers’ compensation have clients who have been terminated or retaliated against because of their injuries. These clients may have a cause of action under the Americans with Disabilities Act, the workers’ compensation statutes or both.

 

THE AMERICANS WITH DISABILITIES ACT, AS AMENDED

The Americans with Disabilities Act (ADA) serves as a crucial legal framework designed to protect individuals with disabilities from discrimination in the workplace. Under Title I of the ADA, employers are prohibited from treating qualified employees or job applicants unfavorably due to their disabilities. This protection extends to all facets of employment, including but not limited to hiring, termination, compensation, job assignments, promotions, layoffs, training, fringe benefits and other employment terms or conditions.[6]

The ADA emphasizes a broad interpretation of what constitutes a disability, ensuring comprehensive coverage. An individual is deemed to have a disability if they possess a physical or mental condition that significantly restricts a major life activity, have a history of such a condition or experience negative employment actions due to a perceived or actual impairment, provided that it is not transitory and minor. Importantly, a medical condition does not need to be long term, permanent or severe to be considered substantially limiting. The primary focus is on the limitation of symptoms when they are active.[7]

Under the ADA, employers must make a “reasonable accommodation” for an employee’s disability to allow the employee to perform the “essential functions” of their position. Employers are required to enter into an “interactive discussion” with an employee who is asking for a reasonable accommodation, unless the employer can show “undue hardship.” This begins with the employee requesting a reasonable accommodation, which then “triggers the employer’s responsibility to engage in the interactive process where both parties must communicate in good-faith.”[8]

What Is a ‘Reasonable Accommodation’?

The ADA requires covered employers to provide reasonable accommodations to disabled employees. These accommodations enable employees to perform the essential functions of their jobs. This definition encompasses modifications or adjustments to the work environment or the manner in which a job is customarily performed. The ADA defines “reasonable accommodation” to include job restructuring; part-time or modified work schedules; reassignment to a vacant position; acquisition or modification of equipment or devices; appropriate adjustment or modifications of examinations, training materials or policies; and other similar accommodations for individuals with disabilities.[9] The term relates to those accommodations that enable the employee to perform the essential functions of their job.[10]

An accommodation must be reasonable. The 10th Circuit does not recognize indefinite leave, however, as a reasonable accommodation.^[11] Further, if it is an “undue hardship” for the employer, it is not considered a reasonable accommodation. The statute defines undue hardship as “an action requiring significant difficulty or expense,” considering several factors, such as the nature and cost of the accommodation, the overall financial resources of the facility, the number of persons employed and the impact on the operation of the facility.[12] The 10th Circuit has emphasized that the hardship must be real rather than speculative, and the employer is on stronger ground when it has attempted various methods of accommodation and can point to actual hardships that resulted.[13]

What Is an ‘Essential Function’?

Under the ADA, only essential functions must be accommodated. If the function is not essential, no accommodation is necessary. First, an employee must be qualified for the position. To be qualified, an employee must be able to perform the essential functions of their job, or the job desired, with or without accommodations.[14] The definition of an “essential function” under the ADA is primarily derived from the regulations and case law interpreting the statute. The term “essential functions” is defined as “the fundamental job duties of the employment position the individual with a disability holds or desires.”[15] This definition explicitly excludes marginal functions of the position.[16]

The determination of whether a particular job function is essential involves a factual inquiry that considers several factors. These factors include but are not necessarily limited to: 1) the employer’s judgment as to which functions are essential,[17] 2) written job descriptions prepared before advertising or interviewing applicants for the job,[18] 3) the amount of time spent on the job performing the function,[19] 4) the consequences of not requiring the incumbent to perform the function,[20] 5) the work experience of past incumbents in the job[21] and 6) the current work experience of incumbents in similar jobs.[22]

Courts evaluate an employer’s identification of essential functions under the ADA by giving considerable weight to the employer’s judgment, especially when supported by a written job description.[23] However, this deference is not absolute, and courts may question or reject an employer’s determination if it appears to be inconsistent with business necessity or if the function is deemed marginal rather than essential.[24] The 10th Circuit places considerable weight on the employer’s judgment concerning what functions are essential, provided that the employer’s description is job-related, uniformly enforced and consistent with business necessity.[25] Courts are generally reluctant to second-guess the employer’s business judgments in defining essential functions.[26] However, this deference is not limitless, as an employer cannot arbitrarily designate every condition of employment as an essential function, and courts may question or reject an employer’s determination if it appears to be inconsistent with business necessity or if the function is deemed marginal rather than essential.[27]

In summary, the definition of an “essential function” under the ADA in the 10th Circuit is the fundamental job duties of the employment position the individual with a disability holds or desires, excluding marginal functions. The determination involves a factual inquiry considering the employer’s judgment, written job descriptions, time spent on the function, consequences of not performing the function and the work experience of incumbents. Courts generally defer to the employer’s judgment, provided it is job-related, uniformly enforced and consistent with business necessity.[28]

What Is an ‘Interactive Discussion’?

The interactive process required to determine a reasonable accommodation under the ADA involves a collaborative effort between the employer and the employee. The 10th Circuit has consistently emphasized that this process necessitates good faith communications from both parties to identify the employee’s limitations and explore potential accommodations, as each side possesses different information critical to determining whether there is a reasonable accommodation that might permit the disabled employee to perform the essential functions of their job.[29] The employer’s obligation to engage in this process is triggered when the employee provides notice of their disability and any resulting limitations.[30]

As noted, both the employer and the employee must participate in this interactive discussion. The employer has an affirmative obligation to undertake a good faith back-and-forth process with the employee, aiming to identify the employee’s precise limitations and attempting to find a reasonable accommodation for those limitations.[31] This duty includes meeting with the employee, requesting information about the employee’s condition and limitations, indicating to the employee that the employer is considering the request and offering and discussing reasonable alternatives.[32] The employee also has a duty to engage reasonably in the interactive process. This includes providing necessary medical information and clarifying the scope of their accommodation needs.[33] Failure to provide such information precludes the employee from claiming the employer violated the ADA by failing to provide reasonable accommodation.[34]

In short, the interactive process under the ADA requires both the employer and employee to engage in good faith communications to identify the employee’s limitations and explore potential accommodations. The process is triggered by the employee’s notice of their disability, and both parties must participate actively to fulfill their respective obligations. Failure to engage in this process can have significant legal consequences, particularly in summary judgment proceedings.

RETALIATION AND DISCRIMINATION UNDER THE OKLAHOMA ADMINISTRATIVE WORKERS' COMPENSATION ACT 

So how does the ADA relate to or impact Oklahoma’s workers’ compensation statutes? Discriminating and/or retaliating against an employee for a claim under the Oklahoma Administrative Workers’ Compensation Act (AWCA) is against the law. Essentially, an employer cannot retaliate against an employee when the employee has, in good faith, 1) filed a claim, 2) retained an attorney, 3) instituted any proceeding under the act or 4) testified in any proceeding.[35] In addition, an employee cannot be discharged while on temporary total disability for the sole reason of being absent from work.[36]

How Does the ADA Impact the AWCA?

In what way does the ADA come into play in a work-related injury? The AWCA also states, “Notwithstanding any other provision of this section, an employer shall not be required to rehire or retain an employee who, after temporary total disability has been exhausted, is determined by a physician to be physically unable to perform his or her assigned duties or whose position is no longer available.”[37] Thus, under the AWCA, an employer can refuse to keep an employee who is unable to perform their assigned duties. Most employees who are represented in a workers’ compensation case come out of workers’ compensation with some kind of restrictions. This, however, can violate the ADA because it does not consider the reasonable accommodation process provided in the ADA. If an employee has restrictions, as described above, the employer must enter the interactive process to determine if there is a reasonable accommodation available. Under the ADA, with few exceptions, a reasonable accommodation includes transferring an employee to an open position, which is not a promotion, where an employee either needs no accommodations or reasonable accommodations are available. The ADA, however, does not obligate employers to create new positions or reassign disabled employees to nonvacant roles. Employers are not required to promote or find alternative jobs for employees who cannot perform their current job's essential functions.[38]

How Is ‘Light Duty’ Different From a ‘Reasonable Accommodation’?

Under the AWCA, an employer can provide an employee who cannot perform their regular job a “light duty” position.[39] Light duty generally refers to tasks an injured employee can perform, despite physical restrictions resulting from a work-related injury. The availability and offer of light duty can impact the employee’s eligibility for temporary total disability (TTD) benefits.[40] Under the ADA, a “light duty” position may not be considered a reasonable accommodation, as it is a job that was created specifically for workers’ compensation injuries. An employer is not required to create a job for an employee as an accommodation.[41] The employee can also be placed on TTD for a period of time that would not be considered a reasonable accommodation under the ADA.[42] After the employee reaches maximum medical improvement under the AWCA[43] and receives a disability rating, some employers will not return the employee to work with restrictions, as given in their workers’ compensation case. While this may be allowed under the workers’ compensation statutes, it is not allowed under the ADA without the required “interactive discussion.”

Furthermore, the 10th Circuit case law specifies a reasonable accommodation to include transferring the employee to an open position that is not a promotion.[44] With few exceptions, such as a bona fide seniority system or a union contract,[45] it is the employer’s duty to find the employee an open position and transfer the employee to it without the necessity for the employee to apply for the position.[46] Some employers may tell employees they should search for open positions and apply for them, and it is up to the hiring official whether they get the job.[47] Except for the limited exceptions noted above, it is my opinion that this policy violates the ADA.

THE OKLAHOMA ANTI-DISCRIMINATION ACT

Oklahoma basically recognizes the same types of discrimination recognized in federal law.[48] While the ADA only covers employers with at least 15 employees,[49] the Oklahoma Anti-Discrimination Act (OADA) covers employers with only one employee.[50] Generally, if the employer has over 15 employees (20 employees for an age discrimination violation), the employee can file either with the Equal Employment Opportunity Commission (EEOC) or the Oklahoma Office of Civil Rights Enforcement (OCRE). Under the OADA, however, the charge must be filed within 180 days.[51] Because the OCRE and the EEOC have a work-sharing agreement, the charge for violation of federal law must be filed within 300 days.[52] If the charge is filed under state law and the employer is an Oklahoma political subdivision, a tort claim under the Oklahoma Governmental Tort Claims Act must be filed.[53]

RELEVANT FILING DEADLINES 

As noted previously, an employee has either 180 days to file a charge if the employer has fewer than 15 employees or 300 days if the employer has over that amount, and these administrative filings must be exhausted prior to filing in court. Under both the ADA and the OADA, exhaustion of administrative remedies is required, and the EEOC (or the OCRE) must issue a notice of right to sue before a lawsuit can be filed.[54] However, another statute also regulates disability discrimination in employment – Section 504 of the Rehabilitation Act of 1973. This statute covers any employer that receives federal funds, no matter how many employees the employer has.[55] Section 504 in Oklahoma has a two-year statute of limitations.[56] Further, Section 504 does not require any administrative exhaustion, so employees are not required to file a charge with the EEOC.[57]

Bottom line, employers are required to accommodate employees with disabilities unless they can show undue hardship. Therefore, every employee injured, whether on or off the job, is likely to be covered by at least one of these statutes.

CONCLUSION

Employment law is a complex and dynamic field that intersects with many other areas of legal practice. By understanding the basics, non-employment law attorneys can better serve their clients and identify potential legal issues. However, given the intricacies of employment law, seeking specialized advice when needed is always advisable. This ensures that clients receive the most accurate and effective legal guidance.

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IDENTIFYING AN EMPLOYMENT LAW CASE

My first step is to determine if the employee was fired for an illegal reason, which would override the employment-at-will doctrine. I ask the employee what the employer said was the reason for the adverse action and then ask what they thought the “real reason” was. Often, an employee says something along the lines of “my boss just didn’t like me.” So I then dig deeper as to why the employer did not like the employee. Was it because of a protected characteristic, such as a disability? Or was it because the employee questioned internal policies or procedures? If so, this is probably not a violation of the law.

Moreover, some employers do not appreciate the difference in the requirements under the AWCA and the requirements under the ADA and fail to fully explore the accommodations required by the ADA. For example, I still observe employers telling employees that they can apply for alternate positions rather than placing them in that position. I also still see employers that maintain that marginal duties are essential and that no accommodations are available. For attorneys who represent injured employees, it is crucial to become informed about these laws, as there are time limits to pursuing disability-related causes of action, and ensure clients do their part in the “interactive process” to determine what reasonable accommodations are available.

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ABOUT THE AUTHOR
Patricia A. Podolec practices employment law, representing employees. She is certified as a senior professional in human resources by the Human Resource Certification Institute. Prior to attending law school, Ms. Podolec worked in human resources. She is also a member of the Federal Bar Association, the American Bar Association, the Oklahoma Employment Lawyers Association and the National Employment Lawyers Association. She graduated magna cum laude from the OCU School of Law.

 

 

 

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ENDNOTES

[1] Virtually every state and Washington, D.C., recognize at-will employment. See http://bit.ly/41wlxpy (last visited May 8, 2025).

[2] "Such indefinite employment contracts are deemed terminable-at-will. The classic statement of the at-will rule was that an employer may discharge an employee for good cause, for no cause or even for cause morally wrong, without being thereby guilty of legal wrong." Burk v. K-Mart Corp., 1989 OK 22, ¶5, 770 P.2d 24, 26.

[3] Gilmore v. Enogex, Inc., 1994 OK 76, ¶6, 878 P.2d 360, 362-63 (“Employers can discharge at-will employees without recourse, in good or bad faith, with or without cause. There is no implied covenant of good faith and fair dealing that protects an at-will employment relationship from termination. At-will employees do not have a cognizable cause of action for wrongful discharge unless the claim falls within the narrow class of complaints in which the discharge is contrary to a clear mandate of public policy articulated by constitutional, statutory or decisional law.”).

[4] A Burk tort does not protect an employee from the employer's “poor business judgment, or corporate foolishness.” Shero v. Grand Savings Bank, 2007 OK 24, ¶12, 161 P.3d 298, 302.

[5] Hayes v. Eateries, Inc., 1995 OK 108, ¶32, 905 P.2d 778, 789-90 (No public policy Burk tort claim is stated “where an employee claims his discharge was motivated by his reporting either externally (to appropriate law enforcement officials) or internally (to appropriate company officials), criminal conduct of a co-employee perpetrated against the interest of the employer"; McKenzie v. Renberg's Inc., 94 F.3d 1478, 1481 (10th Cir. 1996) (“We hold that McKenzie did not engage in protected activity under §215(a)(3) when, in her capacity as personnel director, she undertook to advise Renberg's that its wage and hour policies were in violation of the FLSA.”); Shero, 2007 OK 24, ¶13, 161 P.3d at 303 (“Employer/Bank did not violate public policy when it conditioned Employee's employment upon Employee's abandonment of his counterclaim pursuant to the Open Records Act, 51 O.S.2001, §24A.1, against the Employer/Bank's customer.”).

[6] “Disability Discrimination and Employment Decisions,” U.S. Equal Employment Opportunity Commission. http://bit.ly/4ouyDxt (last visited May 26, 2025).

[7] Id.

[8] Dansie v. Union Pacific Railroad Co., 42 F.4th 1184, 1193 (10th Cir. 2022).

[9] Lincoln, 900 F.3d at 1204-05 (2018) (“The ADA defines “reasonable accommodation” to “include ... job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, ... and other similar accommodations for individuals with disabilities.” 42 U.S.C. §12111(9) (emphasis added)).

[10] Id. (“This is because a reasonable accommodation ‘refers to those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.’”) (emphasis removed).

[11] Herrmann v. Salt Lake City Corp., 21 F.4th 666, 676 (10th Cir. 2021) (“But a request for indefinite leave is not reasonable as a matter of law.”).

[12] 42 U.S.C.A. §12111(10); see also Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154 (10th Cir. 1999); Aubrey v. Koppes, 975 F.3d 995 (10th Cir. 2020).

[13] Equal Employment Opportunity Comm'n v. JBS USA, LLC, 115 F. Supp. 3d 1203, 1232 (D. Colo. 2015).

[14] 42 U.S.C.A. §12111.

[15] Burnett v. Pizza Hut of Am., Inc., 92 F. Supp. 2d 1142 (D. Kan. 2000).

[16] 29 C.F.R. §1630.2.

[17] Hinson v. U.S.D. No. 500, 187 F.Supp.2d 1297, 1304 (2002); Lincoln v. BNSF Ry. Co., 900 F.3d 1166, 1192 (10th Cir. 2018).

[18] Lincoln, 900 F.3d at 1192; Mason v. Avaya Commc'ns, Inc., 357 F.3d 1 at 1119 (10th Cir. 2004).

[19] Mason, 357 at 1119; Mathews v. Denver Post, 263 F.3d 1164, 1167 (10th Cir. 2001).

[20] Id.

[21] Hinson, 187 F. Supp. 2d at 1305; Mason, supra note 20.

[22] Hinson, supra note 23.

[23] Unrein v. PHC-Fort Morgan, Inc., 993 F.3d 873, 877 (10th Cir. 2021) (“Indeed, ‘[w]e will not second guess the employer's judgment when its description is job-related, uniformly enforced, and consistent with business necessity.’”) Mason, supra note 20.

[24]         The deference provided to employers regarding what functions are essential, however, is not limitless, as “an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.” Hawkins, 778 F.3d at 889 (quotation marks omitted); see 29 C.F.R. §1630.2(n)(1) (“The term ‘essential functions’ does not include the marginal functions of the position.”).

 

Lincoln, 900 F.3d at 1192 (10th Cir. 2018).

[25] Id., supra note 26; Mannan v. Colorado, 841 Fed. Appx. 61, 66-67 (10th Cir. 2020).

[26] Mason, supra note 20 at 1122 (“In cases arising under the ADA, we do not sit as a ‘super personnel department’ that second guesses employers' business judgments.”).

[27] Lincoln, 900 F.3d at 1192 (“The deference provided to employers regarding what functions are essential, however, is not limitless, as ‘an employer may not turn every condition of employment which it elects to adopt into a job function, let alone an essential job function.’”).

[28] Mason, supra note 20 at 1119.

[29] Norwood v. United Parcel Serv., Inc., 19-2496-DDC-JPO, 2021 WL 3022315, at *11 (D. Kan. July 16, 2021), aff'd, Norwood v. United Parcel Serv., Inc., 57 F.4th 779 (10th Cir. 2023); Aubrey v. Koppes, 975 F.3d 995, 1007 (10th Cir. 2020).

[30] Dansie, 42 F.4th at 1193; Norwood, 57 F.4th at 786 (10th Cir. 2023).

[31] Id.

[32] Williams v. Prison Health Servs., Inc., 159 F. Supp. 2d 1301, 1310 (D. Kan. 2001), aff'd, Williams v. Prison Health Servs., Inc., 35 Fed. Appx. 774 (10th Cir. 2002).

[33] Norwood, supra note 31 at *20, (“Courts have repeatedly ruled in favor of employers in ADA claims where the employee failed to participate in good faith during the interactive process.”).

[34] Hurt v. Sch. Dist. No. 1 in Cnty. of Denver Colorado, 664 F. Supp. 3d 1227, 1240 (D. Colo. 2023), appeal dismissed sub nom. Hurt v. Sch. Dist. No. 1 in Cnty. of Denver, 23-1136, 2023 WL 7215340 (10th Cir. June 1, 2023).

[35] 85A O.S. §7.

[36] Id.

[37] Id.

[38] Smith v. Midland Brake, Inc., a Div. of Echlin, Inc., 180 F.3d 1154 (10th Cir. 1999).

[39] 85A O.S. §45.

[40] Williams v. Hormel Foods Corp., 2003 OK CIV APP 37, 67 P.3d 375.

[41] Smith, supra note 40.

[42] Herrmann, supra note 13 at 676 (“But a request for indefinite leave is not reasonable as a matter of law.”).

[43] 85A O.S. §2(28) (“‘Maximum medical improvement’ means that no further material improvement would reasonably be expected from medical treatment or the passage of time.”).

[44] Smith, supra note 40.

[45] US Airways, Inc. v. Barnett, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002).

[46] Smith, supra note 40.

[47] Lincoln, 900 F.3d at 1205 (“Under BNSF's logic, every employer could adopt a policy in favor of hiring the most qualified candidate such that a disabled employee could never rely on reassignment to establish the existence of a reasonable accommodation for purposes of his prima facie case. Such a result would effectively and improperly read ‘reassignment to a vacant position’ out of the ADA's definition of ‘reasonable accommodation.’”).

[48] 25 O.S. §1350.

[49] 42 U.S.C.A. §12111(5)(A).

[50] 25 O.S. §1301(1).

[51] 25 O.S. §1350(B).

[52] E.E.O.C. v. Commercial Office Products Co., 486 U.S. 107, 108 S. Ct. 1666, 100 L. Ed. 2d 96 (1988).

[53] Conner v. State, 2025 OK 12.

[54] 29 C.F.R. §1601.28.

[55] Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 969 (10th Cir. 2002) (“Employers with fewer than fifteen employees are subject to the Rehabilitation Act's requirements so long as they are recipients of federal assistance.").

[56] Levy v. Kansas Dep't of Soc. & Rehab. Servs., 789 F.3d 1164, 1172 (10th Cir. 2015) (“Because a section 504 claim is closely analogous to section 1983, we find that section 504 claims are best characterized as claims for personal injuries.”). While this case is based on Kansas law, Oklahoma’s personal injury statute is also two years. See 12 O.S. §95.

[57] Edmonds-Radford v. Sw. Airlines Co., 17 F.4th 975, 986 (10th Cir. 2021) (“The applicability of the Rehabilitation Act is significant here because it, unlike the ADA, does not require the exhaustion of administrative remedies.”).