Fri, 04/16/2021
As more states report improvements in COVID-19 infections and hospitalizations, and businesses begin to reopen, employees face uncertainty relating to return to work and workplace COVID-19 safety measures. Despite these concerns, on March 5, 2021, South Carolina Governor Henry McMaster issued Executive Order No. 2021-21, requiring state agencies to “immediately expedite the transition back to normal operations.” Sec. 5(D). As a result of the Order, which reverses an earlier Order allowing non-essential workers to work remotely full time, all South Carolina government non-essential employees and staff must return to the workplace on a full-time basis. The Executive Order requires all state employees return to the office, regardless of whether they are fully vaccinated against COVID-19, or their ability to secure childcare or elder care.
On April 5, 2021, the American Civil Liberties Union (“ACLU”) challenged the Governor’s return to work order, claiming that requiring non-essential employees to report for in-person work exceeds the Governor’s authority and disproportionately effects women, caregivers, people of color and workers with disabilities in violation of anti-discrimination laws. The lawsuit challenging the executive order claims that unexpectedly requiring workers to return to the workplace effects those in protected classes more, because they are generally responsible for activities like elder or child care and will have a very limited amount of time to arrange care. For example, because child and elder caregiving responsibilities disproportionately fall on women, who must now return to the workplace without sufficient notice from the state or assistance in securing adequate care, they will be disproportionately effected by the executive order. Similarly, the lawsuit alleges that the Order will disproportionately impact disabled workers, who may be at increased risk for severe COVID-19 cases, should they become infected.
The lawsuit highlights numerous practical reasons why employees believe telework policies should remain in place, especially because over the past year, many employees have worked remotely full-time and were able to continue business operations without the increased risk of contracting COVID-19 that comes with in-person interactions..
As with South Carolina, many employers requiring employees to return to the office have not demonstrated a business reasons to return non-essential employees to the office. Given the rapid timeline for employees’ return to in-person work in some locations like South Carolina, many workplaces may lack well-reasoned COVID-19 safety plans, including procedures for ensuring work sites are properly ventilated, that employees are able to appropriately distance from each other and from the public, and how to address employees and visitors who refuse to comply with applicable mask mandates. Likewise, workplaces may lack adequate personal protective equipment, such as masks and hand sanitizer.
Despite these valid concerns, employees face an uphill battle in legally challenging the return-to-work policies, especially in the public sector.
Employees in jurisdictions where there continue to be limits on gathering, or where worksite logistics will not allow for appropriate safety measures, may be able to seek assistance from the Occupational Safety and Health Administration, which is charged with ensuring safe workplaces and recently increased efforts to enforce COVID-19 safety measures.
For state workers, governors have broad discretion in utilizing their executive power to dictate how state agencies are run, which means a direct challenge to state-level return-to-work orders will have to prove that the governor exceeded that broad authority. Some mayors may have similar authority.
Similarly, to succeed on a discrimination claim, the plaintiffs must prove that employees in a protective class, such as caregivers, are disproportionally affected by the return-to-work policies and that they are entitled to accommodations, such as telework. COVID-19 related litigation involving telework is new and often lacks established precedent, which makes it difficult to predict how courts will rule when workers seek to continue working remotely.
Before workplaces reopen, employers and their workers should consider how to do so safely and reasonably. For more on workplace issues during the COVID-19 pandemic, visit https://www.mselaborlaw.com/resources/coronavirus-information-general.
