South Carolina workers have begun filing lawsuits alleging they were fired after staying at home on the advice of employers or doctors while awaiting COVID-19 test results.
Business owners have raised the alarm, both nationwide and in the Palmetto State, concerned they’ll see an uptick in lawsuits from sick workers and customers as businesses reopen and positive coronavirus cases continue to rise.
In South Carolina, at least seven people have sued their employers, claiming they’ve been laid off or fired while quarantining or caring for family amid the pandemic — a possible breach of state and federal labor laws.
A licensed practical nurse at a Lowcountry nursing home, claims she was fired for not showing up to work, even after she was told to quarantine because of possible coronavirus exposure.
According to court filings, the nurse told her supervisor she might have come in contact with her aunt who had treated a COVID-19 patient at a facility in Kershaw County, where the virus first made its appearance in South Carolina. This was March 9, before testing was widespread in the Palmetto State, and her supervisor sent her home for a “14-day quarantine.”
“I felt like you were dishonest about when you came in contact with your aunt, and I just don’t want you coming back,” the supervisor later told her, according to court documents.
In court documents filed by the nursing home, the company said the nurse had a history of work attendance problems and that’s why she was fired.
“No employee who suspects they’ve been exposed to or experienced symptoms of COVID-19 has been fired for quarantining at home and not coming to work,” the nursing home said in a statement.
The nurse said in court filings she had missed work previously for childcare issues but always had her shift covered and had not been disciplined.
“It’s a really crappy situation,” said Paul Porter, a Columbia attorney representing employees in a number of coronavirus-related work cases.
He thinks most employers are doing the right thing but some have used the pandemic as a scapegoat. And it sends an unsafe message to workers.
“What do you think peers will do when they get a little cough?” Porter said, especially hourly workers trying to put food on the table.
Business owners’ concerns caught the attention of lawmakers, with U.S. Senate Majority Leader Mitch McConnell having promised to push for liability protections as they have mulled another federal COVID-19 stimulus package.
The measure has broad support from Republicans, including U.S. Sens. Lindsey Graham and Tim Scott of South Carolina, who say businesses need greater protection from lawsuits by customers or workers who may catch the virus and say they were infected while at a business.
In South Carolina, state lawmakers have resumed talks of passing similar protections at the state level. The S.C. Chamber of Commerce and other business groups criticized politicians for leaving the Capital before acting on such legislation while other Southeast states made progress.
But a broad wave of lawsuits has yet to materialize.
A spate of suits by workers claiming they got sick at work is unlikely, as those employees would be covered by workers compensation, said University of South Carolina law professor Joseph Seiner, who specializes in labor law.
An online tally collected by law firm Hunton Andrews Kurth shows more than 4,250 various coronavirus-related complaints filed nationwide since Jan. 30. The majority of those lawsuits have been brought by businesses over insurance coverage, and hundreds were filed by people in prisons.
About 75 were brought because of claims of a lack of personal protective equipment or exposure to COVID-19 at work.
South Carolina has 25 lawsuits filed to date. Five are insurance related, one is over access to voting and three are over education as schools moved classes online at the end of the spring semester.
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The largest number of those are related to labor disputes.
“When people are out of work, receiving pay cuts or being demoted it tends to increase the number of suits filed,” Seiner said.
He thinks the state is seeing the front end of that now.
South Carolina, like many other states, operates under “employment at will” and companies can fire for someone for any reason, making wrongful termination hard to prove under state law, Seiner said. And, historically, S.C. judges have interpreted exceptions to that law narrowly.
“Those claims are a bit of an uphill battle,” Seiner said.
But the law has never before had to stand up to an international health crisis.
“Basically, we’re in a whole new world,” he said, with the pandemic. “It feels wrong but the law is trying to catch up because the law has not required to deal with something like this.”
A decade-long employee at a car part maker in the Midlands became worried when an employee tested positive for COVID-19. She suffers from polycystic kidney disease, which leaves her with a compromised immune system, according to court documents.
When the manufacturer decided to shut down for a week, the woman let her doctor know she had been exposed. She was tested, and the doctor told her to quarantine for seven days or until the test results came back negative.
The employee let her supervisor and company human resources office know she would be out of work, she said in court filings. A few hours after contacting human resources, she was terminated and told her position was being “eliminated,” court documents say.
The company has asked the judge to dismiss the case, stating in court filings that the employee doesn’t meet all criteria for a claim because she was not directly ordered by S.C. Department of Health and Environmental Control, the state’s public health agency, to quarantine.
Porter said cases filed in the state are in a number of different stages but he expects this to emerge as a common argument against the suits, even though in reality it’s impractical.
“To have teeth, the courts have to give a common sense interpretation of the law,” Porter said. “Otherwise, you’ll render it absurd if it’s read so narrow.”
In another case filed in Orangeburg County, an employee at a car dealership was told she was being laid off as the dealership was “downsizing.” She had been quarantined by her employer as she waited for test results because of possible exposure to the coronavirus at the dealership in the days before, according to court filings.
The dealership had customers and employees known to have been diagnosed with COVID-19. So when the employee started feeling sick and developed a cough in March, she let her supervisor know. Though she assumed it was allergies, she was told to get tested.
The woman said the general manager told her that she would not miss a paycheck as a result of taking the necessary time off, the complaint said. When she tested negative, she returned to work.
That afternoon she said her supervisor told her, “We’re gonna part ways right now,” according to court documents.
When she questioned this, he replied the general manager had said she had to go, “Let’s just say we’re gonna downsize.”
When she received her final paycheck, it was short $1,200, court documents said.
Porter said the largest trend he thinks these suits have highlighted is that there is not much protection under the law for the everyday worker. He’s come across more people he’s been unable to help than those he could.
“And that’s sad,” Porter said. “Otherwise, there are going to be a lot of workers left out in the cold.”
In addition to cases filed in state court, three coronavirus cases have been moved to federal court in South Carolina. One involved a former employee of an Isle of Palms bar who claims he was terminated because he sought treatment for coronavirus symptoms.