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Law360 (April 6, 2021, 7:17 PM EDT) -- The South Carolina ACLU has slapped the Palmetto State's governor with a state court suit, saying his "dangerous" directive that nonessential state employees return to the office will put an unfair burden on women, racial minorities and workers with disabilities.
The advocacy group sought an injunction barring Gov. Henry McMaster's order in its Monday suit, saying the directive ran afoul of the state constitution and a law that spells out the governor's powers during emergencies. The suit alleges nonessential employees were expected to return to work starting March 15 and no later than early April, even as COVID-19 case numbers in the state remained exponentially higher than when the workers were first ordered to stay home last year.
"McMaster's return-to-in-person-work order ignores public health guidelines and the continuing serious health risks posed by the COVID-19 pandemic," Susan Dunn, legal director of the ACLU of South Carolina, said in a Monday statement. "People with disabilities, people of color, women and caregivers will bear the brunt of its impact."
"The governor does not have the authority to require nonessential state workers to put themselves and their families at an unnecessary health risk," Dunn added. "This order is dangerous, irresponsible and completely unnecessary."
The order provided little in the way of accommodations, the group said. Although high-risk individuals can request to work from home until they have a chance to receive the vaccine, the order does not consider that some might not be able to get vaccinated for medical reasons, the ACLU said.
McMaster issued the executive order March 5 despite renewing South Carolina's state of emergency declaration as recently as Feb. 21, the ACLU noted. The order included an "affirmative requirement" for full-time in-person work, and it made face masks suggested rather than required in government buildings.
The ACLU said it sued after the state ignored its letter requesting a delay or reversal of the order. In addition to McMaster, the complaint also named Marcia Adams, the executive director of the South Carolina Department of Administration, which oversaw state agencies' return-to-work plans.
Deborah Mihal, a nonessential state employee at the College of Charleston, is also a plaintiff in the suit. According to the complaint, Mihal's husband works away from home five days a week, and her 9-year-old son is committed to virtual schooling for the remainder of the spring school semester.
Mihal can't find an after-school program for her son, nor can she afford to hire a nanny, she said. The scheduling adjustments she was offered would still leave her child unsupervised for hours at a time, she said, and she doesn't have enough paid time off to last the rest of the school year.
"The governor's order forces me to choose between protecting the safety of my family and a paycheck," Mihal said in a statement. "I ask the court to protect my family and me from this dangerous and completely unnecessary order."
Other state employees face similar challenges, the ACLU said. One, a breastfeeding mother, can't get the vaccine yet because the risks to her child are unknown — but as her family's only source of income, she will have to return to work, according to the complaint.
Another state worker who has a chronic medical condition and an also-susceptible family member was forced back to work without being offered an option to take time off under the Family and Medical Leave Act, the ACLU said, although the order requires FMLA compliance.
"There is simply no emergency need, or business necessity, served by requiring nonessential employees to return to the workplace in person at this time," the ACLU said. "Nonessential state employees have been working remotely successfully for over a year."
Brian Symmes, McMaster's communications director, pushed back Tuesday against the ACLU's allegations, telling Law360 that South Carolinians have safely returned to in-person work over the past year. He added that the state has given agencies time to implement safety measures and the flexibility to grant accommodations to employees.
"It's ridiculous to think that requiring employees to go to work is discriminatory in any way," Symmes said. "Employees were given weeks to make any necessary plans for a number of contingencies, including child care, and with 94% of South Carolina's child care facilities open for business, there should be no issue for anyone actively working to make those arrangements."
The plaintiffs are represented by Susan Dunn of the ACLU Foundation of South Carolina; Lindsey Kaley, Galen Sherwin, Brian Dimmick, Daniel Mach and Alexandra Bornstein of the ACLU Foundation; and Nancy Bloodgood of Bloodgood & Sanders LLC.
Counsel information for the state was not immediately available Tuesday.
The case is Mihal et al. v. Gov. Henry D. McMaster et al., in the South Carolina Court of Common Pleas for the Fifth Judicial Circuit. A case number was not immediately available Tuesday.
--Editing by Haylee Pearl.
For a reprint of this article, please contact reprints@law360.com.
