Update Aug. 10 at 10:32 p.m.: UNC System faculty and staff members officially filed the lawsuit Monday in Wake County Superior Court. Plaintiffs across nine different constituent institutions are represented in the class action complaint against the entire UNC System and Gov. Roy Cooper.
Attorney Gary Shipman said those involved in the decision-making process to reopen campuses did so with an understanding that employees would be at a higher risk of exposure to COVID-19 than they would have been if institutions had remained online through fall 2020.
“Things are far worse now than in March, 2020, and we contend that the law does not permit the University of North Carolina system or the Governor to force these Employees to work in conditions that place them at an increased risk of getting sick, being unable to work, being hospitalized, and even dying,” Shipman said in an email statement. “The decision has to be made to place the safety of these Employees and the communities where these campuses are located above the financial concerns that are associated with not returning all these students to these campuses.”
The complaint states that the plaintiffs — individually and on the behalf of sub-classes of employees at their respective campuses — aim to prevent the UNC System and its universities from violating:
- A right to a safe workplace
- A right to conditions and a workplace free from recognized hazards and/or dangerous activities that are likely to cause injury or death
- Constitutionally protected property rights to work and earn a livelihood
- Rights to life, liberty and the pursuit of happiness
After weeks of protests, petitions and letters in response to UNC's reopening plans, faculty and campus workers are taking legal action.
Gary Shipman, a Wilmington-based lawyer, is representing UNC System faculty and staff in the lawsuit. He said he is seeking an injunction that would require the system to provide a safe place to work for his clients, and that any work which can be performed remotely will continue to be done in that way.
In North Carolina, over a quarter of public employees work for the UNC System. Shipman said that over the past two weeks, he’s met virtually with hundreds of employees in an attempt to address their “fear-based” questions about the logistics and safety of institutions’ fall plans.
North Carolina employers, including the UNC System, have a “non-delegable” obligation to employees, Shipman said. Specifically, he highlighted the North Carolina Department of Labor’s “General Duty Clause,” which states employers must provide conditions and a place of employment “free from recognized hazards that are causing or are likely to cause death or serious injury or serious physical harm.”
He said forcing employees to return to campus to perform nonessential functions, particularly when they can be carried out remotely, vastly increases the risk of COVID-19 outbreaks.
“I'm not critical of an inability to develop a plan that tries to protect you against an invisible enemy; I'm not critical of that,” Shipman said. “I just know that so far, it's impossible to do that at a time when we need to ensure that employees' risks are decreased.”
Shipman said he is waiting to assemble representatives from as many of the UNC System’s 16 campuses as possible, with the intention of filing the lawsuit Monday.
“We are still having discussions with the attorneys for UNC and are hopeful that something can happen to avoid our having to file; the 7/29/20 letter from the Orange County Health Director to the Chancellor at UNC tells it all,” Shipman said in an email.
On July 29, Orange County Health Director Quintana Stewart sent a letter to University leadership to recommend that UNC hold virtual classes for the first five weeks of the semester and restrict on-campus housing to at-risk students. In a campuswide message sent Wednesday, Guskiewicz provided an update in response to the letter. The Chancellor also stated his confidence in the University’s plans to open on Monday, which he communicated to Stewart and OCHD Medical Director Erica Pettigrew.
UNC Board of Governors Chairperson Randy Ramsey previously stated that decisions about closing campuses due to a rise in COVID-19 cases would remain at the UNC System level, as opposed to with chancellors at individual institutions.
Which faculty members are trying to sue?
Zofia Knorek, a third-year ecology doctoral student at UNC, is one of the lead plaintiffs in the case. She said she chose to do so because she has a fair amount of job security for the next 18 months due to grant funding, and she wanted to advocate on the behalf of workers who may fear retaliation for speaking out.
Knorek is also a member of the North Carolina Public Workers Union, UE Local 150. She pointed to a “groundswell of grassroots organizing” by campus workers and other University employees across the state, from petitions to marches, that have taken place this summer.
“We're not putting all our eggs in the basket of this lawsuit — it's merely one step, one tool that we're using in addition to all of the other tools that we have thus far used to date,” Knorek said. “But UNC has made it really clear that one of the places that they're willing to play ball is in the courts.”
Jermany Alston, a UNC housekeeper and UE 150 member, has been working at the University for five years and agreed to be a plaintiff with some hesitation.
“I don't want to jeopardize my job, because that's how I have to take care of my family,” she said.
Alston said it’s been difficult balancing increased sanitation efforts with the influx of students arriving to campus, some of whom she said are still not wearing masks. She hopes UNC administration will take into consideration the Orange County Health Department’s recommendations, particularly as many in the campus community have been “saying the same things over and over.”
She said she also hopes the lawsuit will spur the administration to take initiative with campus concerns.
“Just think about our safety and think about the other people's safety — the people here, just act like everybody (here) are your kids,” Alston said. “You want your kids to be safe, you don't want your kids to get sick ... you want to keep them as safe as possible.”
A media relations representative for the UNC System did not respond to a request for comment about the pending lawsuit at the time of publication.
What does the N.C. Department of Labor say?
The recently released COVID-19 Dashboard on Carolina Together’s website tracks positive cumulative cases, and as of Aug. 4, there are 139 student cases and 36 employee total campus cases of COVID-19.
Shipman said while he recognizes that the “proverbial horse is out of the barn” on institutions asking students to not return to campus, he has asked UNC System General Counsel Tom Shanahan and NCDOL representatives to voluntarily suspend the continued movement of students on campus.
In a response to Shipman, NCDOL General Counsel Jill F. Cramer and Deputy Commissioner of Labor Kevin Beauregard acknowledged the concerns of faculty and staff members. However, they stated it is the responsibility of the UNC System to develop policies and plans that reduce the risk of exposure of contracting COVID-19 — not the department.
“Universities within the UNC System have thousands of students, faculty and staff members interacting with one another in condensed, high-population environments,” the letter reads. “However, NCDOL does not have the authority to require UNC to halt the return of students to their campuses prior to submitting any such plans to our agency.”
Though the UNC System can request support from NCDOL in developing procedures, the department “has no jurisdiction over student safety in any university setting,” Cramer and Beauregard said.
They said employees can file a complaint with the Occupational Safety & Health Division of North Carolina if their employer has not provided them with a safe workplace without recognized hazards. The letter also said though OSH and OSHNC do not have COVID-19-specific regulations, existing OSH standards could be applicable to COVID-19, such as those for “personal protective equipment, toxic and hazardous substances, bloodborne pathogens and hazard communication."
But Cramer and Beauregard also said it’s important to consider the language in the General Duty Clause. Specifically, they pointed to the phrase “likely to cause death or serious injury or serious physical harm,” and how it would apply to COVID-19 exposure.
“COVID-19 has caused numerous deaths and hospitalizations in North Carolina and throughout the United States,” the letter states. “However, the available data does not support that serious injury, serious physical harm, or death would be the likely outcome for the majority of individuals who may become infected with COVID-19. The likelihood of serious physical harm or death would only apply to one who falls into the identified high-risk groups.”
As of Aug. 9, Orange County’s COVID-19 case fatality is more than double the rate of both neighboring Durham and Wake counties and slightly higher than the national average of 3.2 percent.
However, case fatality ratios alone do not provide a complete picture of the risks of the pandemic. An NPR article published in July on the case-fatality metric notes that long-term health consequences from infection are also important to consider when evaluating the impact of COVID-19.
Shipman said given the sustained pushback from students, staff and faculty for the fall, and the UNC System's response thus far, he has no reason to believe that a voluntary resolution will be reached. While different institutions have varying plans for fall 2020, he said the underlying concern is the same.
“If the Board of Governors, even a court, wants to make a decision that the upside of increasing this risk and the resulting sickness, illness, death, hospitalization — at least statistically — that will come (and say), ‘Gosh, that's all worth it,’ just to help minimize the economic impact of what the alternative would be,” he said.
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