ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599

STATE OF SOUTH CAROLINA ) IN THE COURT OF COMMON PLEAS

) FOR THE FIFTH JUDICIAL CIRCUIT
COUNTY OF RICHLAND )

DEBORAH MIHAL, and the AMERICAN CIVIL ) Case No.:

LIBERTIES UNION FOUNDATION OF SOUTH )
CAROLINA, )
PLAINTIFFS, ) SUMMONS AND COMPLAINT
)
vs. )
)
GOVERNOR HENRY D. MCMASTER, in His )
Official Capacity; and MARCIA S. ADAMS, )
Executive Director of the South Carolina )
Department of Administration, in Her Official )
Capacity, )
DEFENDANTS. )
)

TO THE DEFENDANTS ABOVE NAMED:

You are hereby summoned and required to answer the Complaint in this action, a copy of which is herewith

served upon you, and to serve a copy of your answer to the Complaint to the subscriber at Bloodgood& Sanders, LLC,

242 Mathis Ferry Road, Suite 201, Mt. Pleasant, S.C. 29464, within thirty (30) days after the service hereof, exclusive

of the day of such service. If you fail to answer the Complaint within that time, the Plaintiffs will apply to the Court for

the relief demanded in the Complaint and a judgment by default will be rendered against you.

SIGNATURE BLOCK ON FOLLOWING PAGE

 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
By: /s/ Nancy Bloodgood /s/ Susan K. Dunn
Nancy Bloodgood (SC Bar # 6459) Susan K. Dunn (SC Bar # 1798)
BLOODGOOD & SANDERS, LLC AMERICAN CIVIL LIBERTIES UNION
242 Mathis Ferry Road, Suite 201 FOUNDATION OF SOUTH CAROLINA
Mt. Pleasant, SC 29464 P.O. Box 20998
Phone: 843-972-0313 Charleston, South Carolina 29413
Email: nbloodgood@bloodgoodsanders.com Phone: 843-282-7953
Fax: 843-720-1428
Email: sdunn@aclusc.org

Lindsey Kaley*
Galen L. Sherwin*
Brian Dimmick*
Daniel Mach*
Alexandra Bornstein*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004
Phone: 212-519-7823
Email: lkaley@aclu.org
Email: gsherwin@aclu.org
Email: bdimmick@aclu.org
Email: dmach@aclu.org
Email: legal_ab@aclu.org

*Pro hac vice forthcoming

Attorneys for Plaintiffs

 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
STATE OF SOUTH CAROLINA )
) IN THE COURT OF COMMON PLEAS
COUNTY OF RICHLAND ) FOR THE FIFTH JUDICIAL CIRCUIT
)
DEBORAH MIHAL, and the AMERICAN CIVIL ) Case No..:
LIBERTIES UNION FOUNDATION OF SOUTH )
CAROLINA, )
)
Plaintiffs, )
) COMPLAINT
vs. )
)
GOVERNOR HENRY D. MCMASTER, in His )
Official Capacity; and MARCIA S. ADAMS, )
Executive Director of the South Carolina )
Department of Administration, in Her Official )
Capacity, )
)
Defendants. )
)
)
)
)
)

COME NOW the Plaintiffs, Deborah Mihal, and the American Civil Liberties Union of South Carolina, by and

through their undersigned counsel, and complaining of the above-named Defendants, would respectfully show unto

this Honorable Court as follows:

INTRODUCTION & NATURE OF THE ACTION

1. On March 5, 2021, South Carolina Governor Henry McMaster ordered state agencies to

“immediately expedite” the return of non-essential state employees to in-person work. This was a complete course

reversal from the Governor’s order that non-essential state employees work remotely, which they had been doing

effectively for a year.

2. Crucially, the Governor’s executive order, EO-2021-12, and the South Carolina Department of

Administration’s memorandum implementing it, require employees with disabilities and employees with caretaking

responsibilities to return to work in person, regardless of their health or ability to find appropriate care coverage. As

a result, EO-2021-12’s provision requiring non-essential state employees to return to work in person will harm

numerous state employees, their families, and their communities—including the approximately 24,000 state

employees who have been working remotely during the pandemic. It also discriminates against employees based on

sex and disability.

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3. When Governor McMaster first declared a public health emergency on March 13, 2020, there were

21 recorded cases of COVID-19 in South Carolina total,1 and a 7-day moving average of 2 cases per day.2 And when

Governor McMaster first ordered that non-essential state employees work remotely on March 19, 2020, there were

165 recorded cases of COVID-19 in South Carolina total,3 and a 7-day moving average of 14 cases per day.4

4. By contrast, on March 5, 2021, when Governor McMaster ordered state agencies to return state non-

essential employees to the office, there were 776 new cases on that day alone, 5 and a 7-day moving average of 1,244

cases per day.6

5. Requiring non-essential state employees to return to work contravenes the Occupational Safety and

Health Administration’s Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace, which

includes limiting the number of people in one place at any given time, including by permitting telework and delivering

services remotely.7 The requirement even contravenes South Carolina’s Department of Health and Environmental

Control’s own guidance for reopening businesses, which explicitly states that employers should “[c]ontinue to

encourage telework when feasible with business operations.”8

6. At the same time, EO 2021-12 also rescinded EO 2021-11, which had required individuals to wear

face coverings in state government offices, buildings, and facilities, and instead merely “encourage[d]” individuals to

1
SC Testing Data & Projections (COVID-19), S.C. Dep’t of Health & Env’t Control,
https://scdhec.gov/covid19/sc-testing-data-projections-covid-19 (cumulative cases).
2
Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, Ctrs.
for Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (South
Carolina).
3
SC Testing Data & Projections (COVID-19), S.C. Dep’t of Health & Env’t Control,
https://scdhec.gov/covid19/sc-testing-data-projections-covid-19 (cumulative cases).
4
Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, Ctrs.
for Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (South
Carolina).
5
SC Testing Data & Projections (COVID-19), S.C. Dep’t of Health & Env’t Control,
https://scdhec.gov/covid19/sc-testing-data-projections-covid-19 (new cases per day).
6
Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, Ctrs.
for Disease Control & Prevention, https://covid.cdc.gov/covid-data-tracker/#trends_dailytrendscases (South
Carolina).
7
Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace,
Occupational Safety & Health Admin., https://www.osha.gov/coronavirus/safework#implement-physical-distancing
(last visited Apr. 5, 2021).
8
COVID-19 Reopening Guidance for Businesses, S.C. Dep’t of Health & Env’t Control (July 27, 2020),
https://scdhec.gov/sites/default/files/media/document/DHEC-Employer-Return-to-Work-Guidance_7.27.20.pdf.
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wear face coverings. Combined with the EO’s rescission of the order that restaurants require employees and customers

to wear face coverings, the EO is highly likely to contribute to increased rates of infection in South Carolina overall. 9

7. Plaintiff Deborah Mihal is a state employee deemed non-essential and permitted to work remotely

during the COVID-19 pandemic. Plaintiff ACLU of South Carolina has members who are non-essential state

employees and were also permitted to work remotely during the COVID-19 pandemic. Plaintiffs seek declaratory and

injunctive relief, both immediate and permanent, against Defendants for exceeding their emergency authority by

requiring non-essential state employees return to the workplace in person. Without such relief, Plaintiffs and their

members will be harmed, as EO-2021-12 leaves many employees with caregiving responsibilities and/or disabilities

in an impossible predicament: They lack options for adequate, safe care for their children and adult dependents—

jeopardizing the wellbeing of those they care for, and putting them at risk of prosecution for neglect. But not returning

to work in person could result in employees losing their jobs. Further, returning to work in person means increased

exposure to COVID-19, and can actually negatively impact employees’ ability to fulfill their job responsibilities.

8. Time is of the essence. Non-essential state employees with caretaking responsibilities are required

to return to the workplace on April 5, 2021, at many state agencies—regardless of whether they have secured adequate

care. Unless the conduct herein alleged is immediately enjoined, employees will be subject to discriminatory policies

that could result in loss of their jobs, unnecessary exposure to COVID-19, disruption to their children’s education, and

other dangers to their own safety and welfare and the safety and welfare of those they care for.

PARTIES, JURISDICTION & VENUE

9. Plaintiff Deborah Mihal (“Mihal”) is a citizen of the United States and a resident of Charleston,

South Carolina. Mihal is an employee at the College of Charleston. The College of Charleston is a public university

operated by the state of South Carolina, and thus a state agency.

10. Plaintiff the ACLU of South Carolina (“ACLU of SC”) is a nonpartisan, nonprofit organization

dedicated to defending the principles embodied in our Constitution and our nation’s civil rights laws. The ACLU of

SC has over 8,000 members throughout the state, including many members who are employed by state agencies.

9
Gery P. Guy Jr. et al., Association of State-Issued Mask Mandates and Allowing On-Premises Restaurant
Dining with County-Level COVID-19 Case and Death Growth Rates — United States, March 1–December 31, 2020,
MMWR 2021 (Mar. 12, 2021), https://www.cdc.gov/mmwr/volumes/70/wr/pdfs/mm7010e3-H.pdf.
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11. Defendant the Honorable Henry D. McMaster (“McMaster”) is the Governor of South Carolina. As

Governor, the South Carolina Constitution vests in him the “supreme executive authority” of the State. S.C. Const.

Art. IV, § 1.

12. Defendant Marcia S. Adams (“Adams”) is the Executive Director of the South Carolina Department

of Administration and is sued in her official capacity. The Department of Administration was directed to review and

approve agencies’ plans for non-essential employees to return to the workplace in-person, as well as to provide

additional guidance and clarification regarding that provision of EO-2021-12.

13. This Court is vested with subject matter jurisdiction with regard to the matters raised in this pleading

by virtue of Article V, § 11, of the South Carolina Constitution, as enabled by South Carolina Code § 14-5-350.

14. This Court has personal jurisdiction with regard to each Defendant.

15. Venue is proper in the Court of Common Pleas of Richland County, South Carolina, by virtue of

South Carolina Code § 15-7-20.

FACTS

Background on Executive Actions

16. On March 13, 2020, Governor McMaster first declared a public health emergency due to the 2019

novel coronavirus (“COVID-19”). In his Executive Order (“EO”) 2020-08, issued on that date, Governor McMaster

explained that he had “determined that it is necessary and prudent to declare that an emergency exists, or that the

threat thereof is imminent, due to the evolving nature and scope of the public health threat or other risks posed by

COVID-19 and the actual and anticipated impacts associated with the same.” Accordingly, pursuant to S.C. Code

Ann. § 1-3-420 and § 25-1-440, the Governor declared a public health emergency as “COVID-19 poses an actual or

imminent public health emergency for the State of South Carolina.”

17. When an emergency is declared, the Governor “is responsible for the safety, security, and welfare

of the State,” and “empowered” with additional authority—but only so far as it is needed to “adequately discharge

this responsibility.” S.C. Code Ann. § 25-1-440(a).

18. This additional authority includes, among other provisions, the ability to “issue emergency

proclamations and regulations and amend or rescind them.” S.C. Code Ann. § 25-1-440(a)(1).

19. Within a week of declaring a public health emergency, Governor McMaster issued EO 2020-11 on

March 19, 2020, directing all non-essential state employees not to report to work in person. The order “direct[ed] that
 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
all non-essential employees and staff of the State of South Carolina . . . shall not report to work, physically or in-

person, effective Friday, March 20, 2020, and until further notice,” and mandated that state agencies and departments

“utilize, to the maximum extent possible, telecommuting or work-from-home options for nonessential employees and

staff.” EO 2020-11 (Mar. 19, 2020). The order was intended “[t]o ensure the proper function and continuity of state

government operations and the uninterrupted performance and provision of emergency, essential, or otherwise

mission-critical state government services, while simultaneously undertaking additional proactive measures to

safeguard the health and safety of state employees, pursuant to the cited authorities and other applicable law.” Id.

20. Prior to issuing the EO at issue in this litigation, Governor McMaster issued a new declaration that

a state of emergency exists in South Carolina on February 21, 2021. EO 2021-10 (Feb. 21, 2021). The order noted

that “as part of the ongoing process of facilitating economic recovery and revitalization in a safe, strategic, and

incremental manner, the State of South Carolina must also continue to encourage effective ‘social distancing’ practices

and implement additional targeted and narrowly tailored emergency measures to combat and control the spread of

COVID-19.” Id.

21. Notwithstanding these previous directives, on March 5, 2021, the Governor issued EO 2021-12,

which directed state agencies to “immediately expedite” the return of non-essential state employees to their offices in

person. EO 2021-12 required agencies to “submit to the Department of Administration, for review and approval, a

plan to expeditiously return all non-essential employees and staff to the workplace on a full-time basis.” EO 2021-12

at 12 (“Return In Person Order”). The Return In Person Order also directed the Department to continue to provide

supplemental guidance as needed to the agencies. Id.

22. The Return In Person Order did not merely rescind EO 2020-11’s provision directing non-essential

employees and staff to work remotely—it created an affirmative requirement that non-essential state employees return

to work in-person, full time.

23. On March 5, 2021, the same day the Governor issued EO 2021-12, the South Carolina Department

of Administration issued a memorandum to Agency Directors of all state agencies and institutions of higher education

entitled “State Government Staffing – Return to Normal Operations.” (The “Memorandum”). The Memorandum

required state agencies to submit their return-to-the-office plans to the Department of Administration by March 10 at

noon, and provided that if an agency or institution does not have an approved plan by the close of business on March

12, the agency or institution is required to return all staff to the workplace on March 15.
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24. The Memorandum offered guidance to state agencies and institutions in the form of “Frequently

Asked Questions.” The Memorandum set the expectation that all agencies and institutions would return all employees

to the workplace by March 15, permitting only “a limited amount of time” for agencies to modify their workplace to

mitigate the risk of exposure to COVID-19. The example given by the Memorandum of a plan likely to be approved

is one in which an agency would have 60% of its workforce in the workplace on March 15, 75% on March 22, and

the remainder in early April—including employees “who work in close environments such as cubicles or shared

offices.”

25. The Memorandum states that “only those employees who were working from home before the

COVID-19 health emergency for unrelated Covid-19 reasons are to remain teleworking.” Some state agencies and

institutions have interpreted that to mean that, even where they have policies in place to allow employees to request

to work remotely, no new requests can be approved—regardless of the reasons for the request, whether the individual

request would merit approval, or the disruption caused to the employee’s health or productivity by being required to

return to work in person.

26. The Memorandum goes on to explain that even employees with disabilities and employees with

caretaking responsibilities must return to work in person, regardless of their health or ability to find appropriate care

coverage.

27. The Memorandum provides that, even if a child care center or school for an employee’s child is not

available for in-person attendance, employees with caretaking responsibilities must report to the workplace in person.

Agencies are permitted to request additional time for employees with caretaking responsibilities to return to work.

However, the Memorandum is clear that this is a “short time,” and that a plan that would require such employees to

return fulltime to the workplace by April 5 is likely to be approved.

28. For employees with disabilities that the Centers for Disease Control and Prevention (“CDC”) has

identified as placing them at higher risk for severe illness from COVID-19, the Memorandum allows only a

“temporary reasonable accommodation to work remotely until the individual has had an opportunity to be vaccinated.”

The Memorandum does not take into account that the vaccine may be contraindicated for some employees because of

their disabilities, or that others may be at higher risk from COVID-19 because of disabilities that are not specifically

identified by the CDC.

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29. The Memorandum does caution that agencies are still expected to follow the Americans with

Disabilities Act and the Family and Medical Leave Act (“FMLA”), and instructs agencies to handle requests for

accommodations on a case-by-case basis. However, it also states that “it should be considered an essential job function

for employees to be in the workplace”—even though the determination of what constitutes an essential job function

is actually a case-by-case, fact-specific inquiry. That statement is completely contrary to the fact that non-essential

state employees had been fulfilling many of their job functions remotely. Despite that, the Memorandum does not

permit agencies to grant accommodations that would allow employees to work remotely, instead instructing state

agencies to “identify accommodations that would enable the employee to report to the workplace.”

30. Publicly available plans for state agencies and institutions to return their employees to the workplace

generally follow the guidelines outlined by the Memorandum, with variations. The University of South Carolina,

College of Charleston, and Clemson University all require employees who are primary caregivers to return to work

on April 5, even if they have pre-school or school-age children whose daycare or school is not operating on a full-

time schedule, or are unable to find other coverage for their caretaking responsibilities. The University of South

Carolina and Clemson University require employees at high risk of serious illness due to contracting COVID-19 to

return to the workplace on April 17 and April 26 respectively, and require employees to be actively pursuing

vaccination. All three schools suspended the approval of new requests for remote work agreements in accordance with

EO-2021-12. Other state agencies have comparable plans for employees to return to the workplace.

Harms from the Return In Person Order

31. Numerous non-essential state employees are now scrambling to make accommodations for their

caretaking responsibilities, and to determine if any workplace accommodations due to disabilities will be provided to

allow them to return to the workplace safely.

32. Plaintiff Deborah Mihal is the Director of Disability Services for the College of Charleston, and has

been working remotely successfully with her team for the past year. She has been able to hold student meetings via

video conferencing, as well as participating in her various committee responsibilities and holding weekly staff

meetings. There are even some of her job responsibilities, like reviewing student requests for accommodations, that

have become more streamlined by going remote. Mihal has been able to fulfill her responsibilities while acting as

primary caretaker for her nine-year-old son, who is enrolled in remote schooling.
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33. The order that she return to the workplace by April 5 has left Mihal without options for childcare or

workable accommodations. Her husband works full-time out of the house five days a week, except for Friday

afternoons. She had to commit her son to virtual schooling for the full semester in January 2021, and has gotten no

response from her outreach to the principal to see if she can switch him to in-person learning. Even if she is able to

enroll him in-person, that would mean additional disruptions for his education and entail yet another new teacher—

his fifth this school year—along with a new cohort of classmates. Mihal was also told there is no availability to enroll

her son in his school’s afterschool programs. She cannot afford a nanny, and her older son has his own remote school

responsibilities as well as a part-time job.

34. Additionally, both returning to the workplace and all of her available childcare options would

increase her and her family’s exposure to COVID-19. Mihal scheduled her vaccination as soon as she could, and

though she has an appointment, she will not be fully vaccinated before she is required to return to the workplace.

35. Meanwhile, the College of Charleston has not provided her with any solutions. The college has

suspended approval of new telecommuting agreements. One flexible schedule offered to her would move her hours to

8 am to 4 pm, five days a week, which represents only a small schedule adjustment and would not solve her childcare

dilemma. If she tries to rely on leave, she will use it up before the school year is over. Her supervisor suggested that

she could come to the office evenings, say, 3 pm to 7 pm on weekdays, and on weekends to cover her 37.5 hours in

the office. But that will still leave time each day before her husband returns from work to care for their son, and will

not allow her to do many aspects of her job that require her to be available during business hours, such as meeting

with students, hiring a new employee, holding weekly staff meetings, participating in regularly-scheduled committee

meetings, and numerous other job responsibilities.

36. Mihal fears what will happen to her son if he does not have adequate care; she also fears that she

will lose her job if she does not comply with the requirement that she return to work in-person.

37. The challenges Mihal is facing—the risk to her job, her difficulty securing safe childcare, the

disruptions to her son’s schooling, and the increased exposure to COVID-19 infection—all are caused by the

Governor’s Return in Person Order contained in EO-2021-12 and the implementing Memorandum. Without the order,

she would likely continue to be able to work remotely as she has been doing for the past year, or could seek reasonable

accommodations from her employer if she was required to return to the workplace. Mihal would like to continue
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working remotely, at least until the end of the current school year, but will be required to return to the workplace on

April 5.

38. Mihal is not alone in struggling to find childcare. About 20% of public schools in South Carolina

are still on a “hybrid” schedule for all students, only open for in-person instruction 2 to 4 days a week, leaving parents

or other caretakers to supervise the education of school-age children on the remaining school days. In addition, child

care availability in South Carolina, already scarce before the pandemic, decreased even further after the pandemic

began. By late June 2020, only about 60% of the roughly 2,400 regulated child care centers in the state remained open.

Inadequate child care options can lead to a variety of harms, including job loss for the caregiver and the risk of

prosecution for child neglect should the caregiver have to leave her child unsupervised to continue working. In South

Carolina, child neglect is a felony that carries a sentence of up to 10 years in prison if convicted. Children, too, may

be developmentally harmed.

39. Additionally, several members of the ACLU of SC are also unable to find adequate childcare on

such short notice. Two members are being forced to return to the office without alternative childcare arrangements.

One member serves as the primary caregiver for her school-age daughter, since her husband is an essential worker

who works outside the home. Her daughter goes to remote school, and will not be able to return to in-person school

this year. The only even temporary alternative care option she has found so far is an hour’s drive away from her home

and does not have adequate internet for her daughter’s virtual school. Another member has two school-age children

that she will be able to transition to in-person school, but has not found afterschool care for them. She will have no

care for them over the summer and will likely have to take leave or FMLA.

40. Other members of the ACLU of SC are put at risk by the Return In Person Order because they are

breastfeeding or have chronic health conditions. One member is breastfeeding her son who was born in late January,

and does not want to get the vaccine, given the unknown risks to her and her infant. Although she was told she could

request an accommodation to continue working remotely, and submitted all the necessary documentation, her request

was denied and she is expected to return to the office today. She used her leave as part of her maternity leave, and the

only other option she has been given is FMLA. Her husband is a disabled Veteran who cannot work, so she cannot

afford to not make an income. She will have to return to the office, unvaccinated, at great risk to her, her husband, and

her infant.
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41. Another member has a chronic health condition and a wife who is also medically vulnerable. The

member is nonetheless being required to return to the office today, well before he will be fully vaccinated in early

May. No accommodations have been offered to him, and FMLA has not even been suggested as an option. Dunn Decl.

¶ 7.

42. And finally, one member of the ACLU of SC supervises state employees that will be affected by the

Governor’s order. This member is worried that the requirement to return to the office will negatively affect the

productivity and mental health of supervisors and employees, and risks good employees choosing to take other

positions that allow them to continue to work remotely.

EO-2021-12’s Return in Person Order Has a Disparate Impact on Women, Pregnant and
Breastfeeding/Lactating People, People of Color, and People with Disabilities, Contravening
the South Carolina Human Affairs Law

43. The Return in Person Order contravenes the South Carolina Human Affairs Law, which makes it

unlawful for an employer to “discharge from employment, or otherwise discriminate against an individual with respect

to the individual’s compensation or terms, conditions, or privileges of employment because of the individual’s . . .

race, . . . color, sex, . . . national origin, or disability.” S.C. Code Ann. § 1-13-80. The harms described in the preceding

paragraphs will not be felt equally among all non-essential state employees. Rather, the impacts of EO-2021-12 will

disproportionately burden women, people who are pregnant, people of color, and people with disabilities.

44. The Return in Person Order will cause harm to caregivers of school-age children and adult

dependents who are now required to return to work, regardless of their ability to find safe and adequate coverage for

care. Caregiving responsibilities fall disproportionately on women. During the pandemic, “most mothers report that

they are doing all, much more, or somewhat more child care than others.” 10 The result of that imbalance is not

surprising: losing full-time child care and remote schooling were associated with a higher likelihood that mothers

leave the workforce. Requiring caregivers to return to the workplace without care options in place has a disparate

impact on women, who are the ones struggling to find alternative arrangements, paying for costly care, risking placing

their children or adult dependents in unsafe conditions, and potentially losing their jobs if they cannot make alternative

care arrangements.

10
Lauren Bauer et al., Ten economic facts on how mothers spend their time, Brookings Inst. (Mar. 30,
2021), https://www.brookings.edu/research/ten-economic-facts-on-how-mothers-spend-their-time/.
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45. The Return In Person Order will cause harm to people who are pregnant or breastfeeding/lactating.

Although the CDC identifies pregnancy as creating a higher risk for severe illness resulting from COVID-19, the CDC

has also made clear that the decision whether to receive vaccination is a personal choice for those who are pregnant,

given the “limited data on the safety of COVID-19 vaccines in pregnant people.”11 Yet under the Return In Person

Order, state agencies may allow pregnant people to continue to work remotely only if they are taking steps to be

vaccinated. The same is true for those who are breastfeeding/lactating: “Because the vaccines have not been studied

on lactating people, there are no data available on: [t]he safety of COVID-19 vaccines in lactating people[, the] effects

of vaccination on the breastfed infant[, or the] effects on milk production or excretion.”12 By not allowing those who

are pregnant or breastfeeding/lactating to continue to work remotely based on evidence (such as a letter from a doctor)

that they have been advised or have chosen not to get the vaccine, EO 2021-12 fails to address the uncertainty in this

area of research, forcing those who are pregnant or breastfeeding/lactating to get vaccinated or risk losing their jobs

or their income.

46. Employees with disabilities are also harmed by the Return In Person Order. For individuals with

conditions the CDC deems high-risk, state agencies may grant these individuals a temporary accommodation to

continue to work remotely, but only until they have the opportunity to be vaccinated. However, there are some

individuals with these conditions for whom the vaccine may be contraindicated for medical reasons. These employees,

who will continue to face elevated risk from COVID-19, will not be protected by the limited accommodation

authorized by EO 2021-12. Individuals who do not have medical conditions that meet the CDC’s specific criteria may

still be at elevated risk of serious consequences from COVID-19 because they have multiple medical conditions that

combine to increase their risk, or because their specific conditions and circumstances place them in this higher risk

category. EO 2021-12 does not allow for agencies to provide the reasonable accommodation of allowing these

individuals to continue to work remotely, even temporarily, and even if these individuals can present evidence (such

as a letter from a doctor) of their elevated risk. EO 2021-12 also directs agencies to make the determination that all

jobs require being physically present at the workplace as an essential function, even though what job functions are

essential is fact specific, depends on the characteristics of each job, and a number of different types of evidence may

11
Information about COVID-19 Vaccines for People who Are Pregnant or Breastfeeding, Ctrs. for Disease
Control & Prevention (updated Mar. 18, 2021), https://www.cdc.gov/coronavirus/2019-
ncov/vaccines/recommendations/pregnancy.html.
12
Id.
 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
be relevant to the determination for each particular job. There is no support in the law for issuing a blanket declaration

that all jobs within the state government have any particular essential functions.

47. Finally, the Return In Person Order will have a disparate impact based on race and will exacerbate

existing disparities in rates of COVID-19 infection, hospitalization, and death. Black people comprise 26% of the

South Carolina population, yet they have accounted for 26% of COVID cases, 36% of COVID hospitalizations

and 33% of COVID deaths.13 At the same time, Black people represent only 15-17% of those vaccinated, compared

to 23% who were white. These disparities in access to the vaccine mean that people of color will be of higher risk of

returning to work prior to receiving vaccination, thus putting them at even higher risk of contracting the virus than

their white counterparts, simply as a function of returning to work in person. And this compounds existing disparities

in rates of infection, hospitalization, and death already faced by communities of color, and particular African

Americans, who already are disproportionately represented in jobs deemed essential—and thus who were required to

return to work in person—over the course of the pandemic.14

48. There is simply no emergency need, or business necessity, served by requiring non-essential

employees to return to the workplace in person at this time. Non-essential state employees have been working remotely

successfully for over a year.

FOR A FIRST CAUSE OF ACTION

(Violation of Separation of Powers and Non-Delegation Clauses)
South Carolina Constitution, Art. I, § 8, and Art. III, § 1

49. Plaintiffs hereby incorporate each and every of the foregoing allegations of fact set out in this

Complaint into this cause of action, to the extent such allegations are not inconsistent with those that follow.

50. Article I, § 8 of the South Carolina Constitution provides: “In the government of this State, the

legislative, executive, and judicial powers of the government shall be forever separate and distinct from each other,

and no person or persons exercising the functions of one of said departments shall assume or discharge the duties of

any other.”

13
See Kaiser Family Foundation, Nambi Ndugga et al., Latest Data on COVID-19 Vaccinations
Race/Ethnicity, Mar. 31, 2021, https://www.kff.org/coronavirus-covid-19/issue-brief/latest-data-on-covid-19-
vaccinations-race-ethnicity/; Zak Koeske, Black Latino SC Residents Vaccinated at Much Lower Rates than Whites,
Data Show, The State, Feb. 17, 2021, https://www.thestate.com/news/politics-government/article249304980.html.
14
See Tiana N. Rogers et al., Racial Disparities in COVID-19 Mortality Among Essential Workers in the
United States, World Med. Health Policy, Aug. 5, 2020, available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7436547/pdf/WMH3-9999-na.pdf.
 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
51. The legislative power of the State is vested in the Senate and the House of Representatives—together

the General Assembly of the State of South Carolina. S.C. Const. art. III, § 1.

52. The General Assembly has empowered the Governor with additional authority, including the

authority to “issue emergency proclamations and regulations” which “have the force and effect of law,” S.C. Code

Ann. § 25-1-440(a)(1), when an emergency has been declared—but that authority is limited to adequately discharging

the Governor’s responsibility to provide for the “safety, security, and welfare of the State.” S.C. Code Ann. § 25-1-

440.

53. The Governor’s Return In Person Order, as implemented by the Memorandum, creates requirements

for non-essential state employees that are contrary to the safety, security, and welfare of the State. Both the Governor

and the Department of Administration, therefore, have exceeded their statutory authority, usurped the legislative

power of the General Assembly, and improperly imposed unlawful burdens on non-essential state employees in

violation of Art. I, § 8 of the South Carolina Constitution.

54. These matters present a real and justiciable issue which is presently ripe for decision. Therefore,

Plaintiffs respectfully request a declaratory judgment that the provisions of EO-2021-12 requiring non-essential state

employees to return to the workplace in person, as implemented by the Memorandum and administered by and through

the Department of Administration, are impermissible under the laws of the State of South Carolina, by virtue of the

South Carolina Declaratory Judgment Act. S.C. Code § 15-53-10 et seq.

FOR A SECOND CAUSE OF ACTION

(Ultra Vires)
S.C. Code Ann. § 25-1-440

55. Plaintiffs hereby incorporate each and every of the foregoing allegations of fact set out in this

Complaint into this cause of action, to the extent such allegations are not inconsistent with those that follow.

56. A government actor “commit[s] an ultra vires act by exceeding its statutory authority,” as it must

“act[] within the legal parameters established by the legislature.” Baird v. Charleston Cty., 333 S.C. 519, 531, 511

S.E.2d 69, 75 (1999). Where a statute assigns a government entity particular “duties and powers,” actions that exceed

the bounds of those parameters are ultra vires and, accordingly, unlawful. S.C. Pub. Int. Found. v. S.C. Dep’t of

Transportation, 421 S.C. 110, 122-24, 804 S.E.2d 854, 861-62 (2017).
 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
57. The Governor’s authority to act when an emergency has been declared is limited to adequately

discharging the Governor’s responsibility to provide for the “safety, security, and welfare of the State.” S.C. Code

Ann. § 25-1-440.

58. The Governor’s Return in Person Order, as implemented by the Memorandum, creates requirements

for non-essential state employees that are contrary to the safety, security, and welfare of the State. Both the Governor

and the Department of Administration, therefore, have exceeded their statutory authority and improperly imposed

unlawful burdens on non-essential state employees in violation of Art. I, § 8 of the South Carolina Constitution.

59. These matters present a real and justiciable issue which is presently ripe for decision. Therefore,

Plaintiffs respectfully request a declaratory judgment that the provision of EO-2021-12 requiring non-essential state

employees to return to the workplace, as implemented by the Memorandum and administered by and through the

Department of Administration, are impermissible under the laws of the State of South Carolina, by virtue of the South

Carolina Declaratory Judgment Act. S.C. Code Ann. § 15-53-10 et seq.

PRAYER FOR RELIEF

WHEREFORE, having fully stated its claim against Defendants, Plaintiffs respectfully request the entry of an

Order which provides for the following relief:

a. Declaring that the Return in Person Order contained in EO-2021-12, as implemented by the
Memorandum and administered by and through the Department of Administration, to the extent it

requires non-essential state employees to return to the workplace in person without reasonable

accommodations for caregiving, health risk, and disability, is unenforceable because such policies and

procedures exceed the scope of authority granted to the Governor and/or the Department of

Administration and is ultra vires;

b. Enjoin, both temporarily and permanently, the Governor and/or the Department of Administration, as
well as McMaster’s and Adam’s successors in office, agents, employees, attorneys, and those persons

acting in concert with them or at their direction, from using and/or implementing any policy or procedure

requiring non-essential employees to return to the workplace in person, including but not limited to the

Return to Work Order contained in EO-2021-12 as implemented by the Memorandum, that is

inconsistent with the responsibility to protect the safety, security, or welfare of the State, for the

following reasons:
 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
i. The Governor has instituted policies in derogation of the state emergency authority law that

have the natural, probable, and actual consequence of causing irreparable harm to Plaintiffs and

those who are similarly situated;

ii. the burden on caretakers to find adequate, safe care, and the attendant risks and disruption to

dependents, including, for school-aged children, disruption to their education, and dangers from

being left alone or without adequate adult supervision;

iii. the risk of unnecessary exposure to COVID-19, with attendant and potentially deadly risks to

health and safety;

iv. the threat of job loss by state employees; and

v. There is no adequate legal remedy available that is capable of making Plaintiffs whole.

c. Order the Governor and/or Adams to permit state agencies to process and grant requests for reasonable
accommodations based on disability, without the restrictions on the type and duration of

accommodations contained in EO 2021-12 and the Memorandum;

d. Retain jurisdiction over this matter until Defendants have complied with all the Orders and Mandates of
the Court;

e. Award attorney’s fees and costs under South Carolina Code § 15-77-300 should this Court deem such

an award just and proper; and,

f. For such other and further relief as the Court deems just and proper.

Respectfully submitted,

By: /s/ Nancy Bloodgood /s/ Susan K. Dunn

Nancy Bloodgood (SC Bar # 6459) Susan K. Dunn (SC Bar # 1798)
BLOODGOOD & SANDERS, LLC AMERICAN CIVIL LIBERTIES UNION
242 Mathis Ferry Road, Suite 201 FOUNDATION OF SOUTH CAROLINA
Mt. Pleasant, SC 29464 P.O. Box 20998
Phone: 843-972-0313 Charleston, South Carolina 29413
Email: nbloodgood@bloodgoodsanders.com Phone: 843-282-7953
Fax: 843-720-1428
Email: sdunn@aclusc.org
 ELECTRONICALLY FILED - 2021 Apr 06 9:43 AM - RICHLAND - COMMON PLEAS - CASE#2021CP4001599
Lindsey Kaley*
Galen L. Sherwin*
Brian Dimmick*
Daniel Mach*
Alexandra Bornstein*
AMERICAN CIVIL LIBERTIES UNION
FOUNDATION
125 Broad Street, 18th Floor
New York, New York 10004
Phone: 212-519-7823
Email: lkaley@aclu.org
Email: gsherwin@aclu.org
Email: bdimmick@aclu.org
Email: dmach@aclu.org
Email: legal_ab@aclu.org

*Pro hac vice forthcoming

Attorneys for Plaintiffs

Charleston, South Carolina
Date: April 6, 2021