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ACLU asks judge to reconsider and block McMaster's return-to-work order

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McMaster Cabinet meeting

Gov. Henry McMaster hears from leaders of more than two dozen state agencies during a Cabinet meeting in Columbia on Tuesday, April 6, 2021. Most of them gave updates on their agencies' back-to-work status. File/Seanna Adcox/Staff

COLUMBIA — The American Civil Liberties Union is asking a judge to reconsider his refusal to temporarily block Gov. Henry McMaster's return-to-the-workplace order for state employees.

Circuit Judge Casey Manning should either reverse his denial and hold a hearing or allow public employees to continue working from home until the lawsuit plays out in court, the ACLU of South Carolina said in its motion filed April 12.

The filing comes days after Manning denied the organization's initial request, saying the ACLU's legal arguments are unlikely to win. 

The organization wants to stop the enforcement of McMaster's March 5 order that all state agency leaders quickly transition to normal operations. While his order set no deadline, it required employees still working from home to "expeditiously return" to their workplace full-time.

The ACLU sued April 5 after McMaster refused to rescind or indefinitely postpone his order. The lawsuit claimed McMaster lacked the authority to bring public employees back to their offices. It also accused the governor of discriminating against women, who have child-caring responsibilities, and people with disabilities more at-risk of getting seriously ill or dying from COVID-19.

Manning said state law gives McMaster broad authority during a declared emergency, which South Carolina has been under since March 2020. 

"The governor has ample authority to amend or rescind his prior executive orders during the current COVID-19 emergency," Manning wrote April 9. "It is apparent that the plaintiffs disagree with the policy determinations of the governor. … They have failed, however, to set forth a legal reason in why the governor cannot act to return state employees to work."  

The judge also noted that the Department of Administration, which McMaster put in charge of coordinating with agencies on their plans to fully bring workers back, allowed for exceptions and additional time for employees who needed to make child care arrangements.  

"The department's guidance provides state entities with significant flexibility to address the needs of the myriad state employees who may actually require some form of accommodation or assistance in meeting the demands of their position," Manning wrote.

ACLU attorney Susan Dunn said she understands Manning's position but is disappointed the decision came without a hearing.

"It’s an unusual case," she told The Post and Courier, adding that McMaster issued the directive "under his emergency power, and this is not an emergency."

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The lead plaintiff in the lawsuit is Deborah Mihal, director of disability services at the College of Charleston. The ACLU'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, and a nanny is not an affordable option. 

The ACLU's latest motion contends employees risk not only their own health but the additional "risks to their children from being left unsupervised during the workday." 

"What's so heartbreaking is that I'm getting email after email from state employees in desperate situations," Dunn said, disagreeing with the judge's assertion that employees have a "plethora of remedies available."

"They’re scared," she said. "They’re dedicated to their work."

McMaster never ordered child care centers to close. Still, at the height of other pandemic shutdowns across the state, 54 percent of all licensed child care centers statewide closed anyway, partly because they couldn't afford to stay open with so few children.

But the vast majority reopened quickly, McMaster said when asked about the lawsuit last week. 

As of April 12, 95 percent of all licensed child care centers statewide — or nearly 2,270 — were operating, while 129 had not re-opened, according to the state Department of Social Services.

"Even so, everyone has known all along that we were going to have to come back to work," McMaster told reporters after meeting with the leaders of more than two dozen state agencies. "People have been back to work from the beginning. They never left work. We know how to work safely." 

A year ago, just over half of all employees for state agencies, excluding colleges, worked from home. By late fall, that had dropped to roughly one in four state employees. By April 5, just 5 percent still worked from home, according to the state Department of Administration, which did not have numbers for colleges.  

Eligibility for COVID-19 vaccines extended to all South Carolinians ages 16 and older starting March 31.

More than 1.5 million South Carolinians have gotten at least their first COVID-19 vaccine shot, while more than 950,500 — roughly a quarter of everyone eligible — have completed their vaccination, according to the state's public health agency. 

Follow Seanna Adcox on Twitter at @seannaadcox_pc.

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