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Return-to-Work Mandates Tested in ACLU’s South Carolina Case

April 9, 2021, 9:31 AM

The American Civil Liberties Union’s legal challenge to a South Carolina return-to-work order for state employees points to broader legal questions that other jurisdictions, and private businesses, will face if they hasten a return to normalcy.

Citing a decline in new Covid-19 cases and hospitalizations, Gov. Henry McMaster in March ordered state agencies to “immediately expedite” the return of non-essential state employees to in-person work by the beginning of this month.

The ACLU’s lawsuit, filed in state court on April 5, said the Republican governor exceeded his authority and argued that his order would disproportionately harm women, caregivers, people of color, and workers with disabilities, in violation of anti-discrimination laws including Title VII of the 1964 Civil Rights Act and the Americans with Disabilities Act.

The litigation comes as other localities, including New York City, issue their own return-to-office orders for municipal employees. GOP lawmakers in Wisconsin also backed a bill that would have required Gov. Tony Evers (D) to submit a plan requiring state employees to go back to the office. Evers vetoed that bill, arguing it exceeded his authority to administer and oversee employment policy.

“We are certainly concerned that other state governments and other cities will institute orders that force people back to office without considerations for caregivers and burdens on them to actually do so,” ACLU staff attorney Lindsey Kaley said, adding that the civil rights group is looking into New York’s mandate.

Some attorneys and academics said the ACLU faces an uphill battle with its South Carolina challenge. However, they added that the public-sector case raises overarching return-to-work issues that must be taken into account by private businesses eager to move away from the mass telework arrangements necessitated by the Covid-19 pandemic.

Uphill Battle

The governor has broad inherent executive power, and in the ACLU case, he is amending an executive order that required non-essential workers to work remotely, said Akram Faizer, a constitutional law professor at Lincoln Memorial University.

“Many people may feel uncomfortable about returning, but they aren’t entitled to this job,” Faizer said. “They are making a claim that this is discriminatory because non-essential workers have work-life balance issues. That’s all true, but the difficulty is that they don’t have a right or entitlement to maintain the employment.”

He added that the job discrimination claims connected to the constitutional claims go too far, and will be hard to prove.

First, the ACLU would have to prove that women are disproportionately caregivers to support a sex discrimination claim, he said. Another hurdle is that caregivers aren’t legally entitled workplace accommodations, like telework.

But Kaley said if workers have been successfully working remotely for a year, then governments forcing a return to in-person work don’t have a strong case or justification to put their workers at risk.

“The thing is that this order comes on the heels of the pandemic already having such a negative impact on particular populations and especially as to work,” Kaley said. “As we look at returning to offices, we shouldn’t be making mistakes that we made at the beginning of the pandemic.”

Brian Symmes, a spokesman for McMaster, said in a Tuesday statement to Bloomberg News that agencies have been given flexibility to make necessary accommodations and time to implement safety measures.

Return to Office

Outside of the public employer sphere, many private businesses that have successfully transitioned to remote work in the past year are re-thinking the future of a fully in-person workforce.

This is true even for employers that have historically prohibited remote work, said Nancy Gunzenhauser Popper, an Epstein Becker Green P.C. attorney in New York who represents employers.

“For those employers that are bringing their workforce back to the office full-time, we’re seeing many requests for continued remote work as an accommodation—either for a disability or for family care responsibilities,” Popper said.

She noted that the law does typically require an accommodation for those with disabilities, but not necessarily for people without disabilities who have taken on caregiving responsibilities during the pandemic. She said other businesses are ready to have workers back in person and must navigate the required interactive process for accommodations.

“There are many legal questions at play for return-to-work plans after Covid,” said Jackie Ford, a partner at Vorys, Sater, Seymour and Pease LLP in Houston. “With blanket policies, ‘Everybody has to come back to the office tomorrow'—There are legal restrictions that come into play.”

She said a caregiving claim would be particularly hard to prove for the workers, however.

“That’s a really hard claim to bring, and maybe factually turns out to be true that caregivers are disproportionately women, but it assumes that I need to spend my work time taking care of children—that’s a self-defeating argument,” she said.

To contact the reporter on this story: Erin Mulvaney in Washington at emulvaney@bloomberglaw.com

To contact the editors responsible for this story: Jay-Anne B. Casuga at jcasuga@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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