Order Exceeds the Governor’s Authority and Will Cause Real World Harm

CHARLESTON, S.C. - The American Civil Liberties Union of South Carolina, the ACLU, and Bloodgood & Sanders, LLC yesterday filed a lawsuit challenging South Carolina Gov. Henry McMaster’s Executive Order 2021-12, which orders state agencies to “immediately expedite” the return of non-essential state employees to in-person work and overrules existing protocols for employees to seek reasonable accommodations. According to the lawsuit, the order exceeds the governor’s authority and will disproportionately harm women, people with disabilities, caregivers, and Black people. The lawsuit names as defendants South Carolina Gov. Henry McMaster in his official capacity and South Carolina Department of Administration Executive Director Marcia Adams in her official capacity.

The public health emergency from COVID-19 is ongoing. Though the governor has authority to act during an emergency, the order that non-essential state employees return to work in person is contrary to the safety, security, and welfare of the state. The lawsuit argues that both the governor and the Department of Administration have exceeded their statutory authority, usurped the legislative power of the General Assembly, and improperly imposed unlawful burdens on non-essential state employees in violation of Art. I, § 8 of the South Carolina Constitution.

“Governor McMaster's return-to-in-person-work order ignores public health guidelines and the continuing serious health risks posed by the COVID-19 pandemic and people with disabilities, women, and caregivers will bear the brunt of the impact,” said Susan Dunn, legal director of the ACLU of South Carolina. “The governor does not have the authority to require non-essential state workers to put themselves and their families at an unnecessary health risk. This order is dangerous, irresponsible, and completely unnecessary.”

The COVID-19 pandemic continues to present a serious threat to health and safety in South Carolina. On March 5, 2021, when Gov. McMaster ordered state agencies to return state non-essential employees to the office, there were 776 new cases on that day alone, and a 7-day moving average of 1,224 cases per day. As of April 1, only 33 percent of South Carolina residents have received even one dose of the vaccine, and just 18 percent are fully vaccinated. There is no statewide mask requirement, and the order rescinds the mask requirement in: (i) state government buildings, which will directly impact state employees required to return to in-person work, and (ii) restaurants, which will very likely contribute to increased rates of infection in the state overall. The order will affect the more than 24,000 state employees who have been working from home since the governor originally ordered non-essential workers to work remotely.

“The governor’s order forces me to choose between protecting the safety of my family and a paycheck,” said Deborah Mihal, lead plaintiff in this lawsuit. “Since the beginning of this global pandemic over a year ago, my colleagues and I have been safely and effectively working remotely. There is no urgent need for us to return in person. I ask the court to protect my family and me from this dangerous and completely unnecessary order.”

The order has a disparate impact on women. In October of last year, the U.S. Labor Department reported that women were leaving the workforce four times the rate of men. And a few months earlier, McKinsey Global revealed that while women made up 43 percent of the workforce, they accounted for 56 percent of COVID-related job losses. The order requires caregivers, who are disproportionately women, to scramble to make alternative arrangements for child care, in-home schooling, and other caregiving responsibilities. And it will have a disparate impact based on race, exacerbating existing disparities in rates of COVID-19 infection, hospitalization, and death already faced by communities of color, and particular Black people, who are both accessing the vaccine at a lower rate than white people and who already are disproportionately represented in jobs deemed essential — and thus who were required to return to work in person — over the course of the pandemic.

“The governor’s order comes at a time when women are already disproportionately being pushed out of the workforce due to caregiving responsibilities amid the impact of the pandemic,” said Galen Sherwin, senior staff attorney at the ACLU Women’s Rights Project. “The pandemic has exposed the inadequacy of existing supports for caregivers, as well as the persistence of gender and racial inequality both at home and at work. It's more critical than ever to ensure women have equal access to opportunities at work and caregivers are allowed the flexibility to work from home if they can. This order does the opposite.” 

The order will disproportionately harm people with disabilities. For individuals with conditions the CDC deems high-risk, state agencies may grant these individuals a temporary accommodation to continue to work remotely, but only until they have the opportunity to be vaccinated. However, there are some individuals with these conditions for whom the vaccine may be contraindicated for medical reasons. These employees, who will continue to face elevated risk from COVID-19, will not be protected by the limited accommodation. Individuals who do not have medical conditions that meet the CDC’s specific criteria may still be at elevated risk of serious consequences from COVID-19 because they have multiple medical conditions that combine to increase their risk, or because their specific conditions and circumstances place them in this higher risk category. The order does not allow for agencies to provide the reasonable accommodation of allowing these individuals to continue to work remotely, even temporarily, and even if these individuals can present evidence (such as a letter from a doctor) of their elevated risk.

“The governor’s order will force dedicated state employees with disabilities to risk their health unnecessarily by returning to in-person work.,” said Brian Dimmick, senior staff attorney at the ACLU Disability Rights Program. “Instead of allowing state agencies to work with these employees to accommodate their disabilities, as required by federal and state law, the executive order demands that these agencies adopt inflexible policies that will require employees to choose between protecting themselves and their loved ones and keeping their job.”

This lawsuit was filed after the governor ignored a letter sent from the ACLU of South Carolina and ACLU on March 30, 2021 that outlined these same concerns and asked the Governor to rescind or delay the implementation of the Order.

Plaintiffs are Deborah Mihal, an employee at the College of Charleston, and the ACLU of South Carolina, a non-profit organization with members who are non-essential state employees.

A copy of the complaint can be found here: https://www.aclusc.org/sites/default/files/field_documents/mihal_v_mcmaster_-_complaint_-_4-5-21.pdf

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