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ACLU files lawsuit over McMaster's return to in-person work order for SC public employees

Darlington-Vaccine-5.jpg (copy) (copy)

Gov. Henry McMaster addresses the media during a mass vaccination event at Darlington Raceway on March 5, 2021. The governor ordered heads of South Carolina's state agencies to organize a quick return to normal operations, including in-person work. File/Nick Masuda/Staff

The American Civil Liberties Union of South Carolina has filed a lawsuit over Gov. Henry McMaster's executive order requiring state employees working remotely to return to their workplace. 

The state chapter filed the suit April 5 in Richland County a month after McMaster issued a directive to state agency leaders asking that they "expedite the transition back to normal operations."

The ACLU's lawsuit alleges, in part, that the governor's order forces state employees who have children in remote schooling to return to in-person work. The civil rights advocacy group also states the Republican governor's order "disproportionately burden women, people who are pregnant, people of color, and people with disabilities."

McMaster told reporters April 6 the lawsuit has no basis, following a meeting with about two dozen state agency directors.

“We have 5.2 million people depending on state government to do its job in whatever area they do it in. We need to be doing it and doing it full-blast,” he said, noting many state employees have been working in-person throughout the pandemic. “We know how to work safely. We have plenty of protective equipment. There’s no reason for everyone not to be back to work.”

Brian Symmes, spokesman for McMaster, said in a statement that state agencies have been making accommodations for employees who need it and can continue to do so. 

"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 percent of South Carolina’s child care facilities open for business, there should be no issue for anyone actively working to make those arrangements."

The ACLU estimates 24,000 state employees have been working remotely during the pandemic. Deborah Mihal, director of disability services at the College of Charleston, is one of those employees. Mihal is the lead plaintiff on the ACLU's lawsuit. The organization's complaint states Mihal has been successfully working remotely for the past year while acting as the primary caretaker for her 9-year-old son who is enrolled in remote schooling. 

Mihal is left without child care options with her employer now requiring her to be in-person at work for 37.5 hours each week, the lawsuit alleges. A nanny wouldn't be affordable for her.

Guidance from the S.C. Department of Administration that followed the governor's order states "only those employees who were working from home before the COVID-19 health emergency ... are to remain teleworking." People with disabilities and medical conditions that put them at risk for a severe case of COVID-19 can request a temporary exception until they can get a vaccine. 

Only about 5 percent of state employees are still working from home, said Marcia Adams, director of the Department of Administration, which coordinated with agencies on their plans to fully bring employees back.

In a statement, Susan Dunn, legal director of the ACLU of South Carolina, said the governor's order ignores public health guidelines, such as the federal Occupational Safety and Health Administration's recommendation that all employers "continue to consider ways to utilize workplace flexibilities, such as remote work."

"The governor does not have the authority to require non-essential state workers to put themselves and their families at an unnecessary health risk," Dunn said. "This order is dangerous, irresponsible, and completely unnecessary."

Statewide numbers

New cases reported: 358 confirmed, 179 probable.

Total cases in S.C.: 468,525 confirmed, 89,278 probable.

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Percent positive: 5 percent.

New deaths reported: 0 confirmed, 0 probable.

Total deaths in S.C.: 8,112 confirmed, 1,092 probable.

Percent of ICU beds filled: 65 percent.

How does S.C. rank in vaccines administered per 100,000 people? 

44th as of April 5, according to the Centers for Disease Control and Prevention.

Hardest-hit areas 

In the total number of newly confirmed cases, Greenville County (77), Spartanburg County (42) and Charleston County (25) saw the highest totals. 

What about the tri-county?

Charleston County had 25 new cases on April 6, while Berkeley had 11 and Dorchester had 8.

Hospitalizations

Of the 509 COVID-19 patients hospitalized as of April 6, 132 were in the ICU and 58 were using ventilators.

What do experts say?

South Carolina's health professionals agree that in order to beat COVID-19, residents should get the vaccine as soon as an appointment is available. 

DHEC lists vaccine providers on its website at scdhec.gov/vaxlocator. Go to cvas.dhec.sc.gov to find DHEC clinics in regions across the state. 

Getting tested is still essential in slowing the spread of the virus in the community, along with wearing a mask and social distancing. Testing locations can be found at scdhec.gov/FindATest.

Seanna Adcox contributed reporting from Columbia.

Reach Mary Katherine Wildeman at 843-607-4312. Follow her on Twitter @mkwildeman.

Mary Katherine, who also goes by MK, covers health care for The Post and Courier. She is also pursuing a master's degree in data science. She grew up in upstate New York and enjoys playing cards, kayaking and the Blue Ridge Mountains.

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