UNC System employees carry on lawsuit following campus closures

UNC System employees filed a class action lawsuit against Gov. Roy Cooper and the entire school system on Aug. 10. Nearly a month later — following COVID-19 outbreaks and several campus closures — plaintiffs say they’re still fighting for workplace safety. 

The parties met via Zoom on Sept. 2 to conduct a mediated settlement conference, which did not end in a resolution. Zofia Knorek, a lead plaintiff in the case and a doctoral student at UNC-Chapel Hill, said she attended nearly the entire duration of the nine-hour conference. 

She said though the meeting did not end in a resolution, the conference was helpful in understanding the defense’s position. 

“This all started based on the non-delegable duty that they have to provide us with a safe workplace,” Knorek said. “And UNC, they’ve shown us, time in and time out, that they won't take care of us.”

Gary Shipman, the plaintiffs' lawyer, previously stated that he would be seeking an injunction requiring the System to provide a safe place to work for all employees, free from recognized risk of exposure to COVID-19. 

One of the plaintiffs is the UE Local 150, the North Carolina Public Service Workers Union, which has more than 200 members. In an email statement, Shipman said six new individuals have been formally named as plaintiffs since the action was originally filed. Next steps include adding more parties and scheduling further hearings, he said.

“The closure of some campuses to in-person instruction may impact the relief sought for workers on those campuses but not the ones that remain open,” he said in the email.

During last week’s settlement conference, the plaintiffs’ representation presented several key points they were seeking clarity on. 

The points included a lack of transparency in consistent reporting on university COVID-19 dashboards, a lack of consistent policies regarding PPE supplies and a failed implementation of shared governance. Knorek said shared governance refers to having a seat at the table for all members of the campus community in figuring out how to proceed in this pandemic. 

She said these points were particularly important in light of preparations for spring semester.

“We don't want to do this whole circus over again, where we're screaming at the top of our lungs saying, ‘Hey, listen to us, we know what we're talking about,’” Knorek said. “And just have them not listen to us again and try to force this down our throats again.”

Workplace flexibility

Legal representation for both Cooper and the UNC System said they could not comment on active litigation, but The Daily Tar Heel obtained documents that were filed in relation to the lawsuit from a media representative for the UNC System.

In one document, Matthew Brody, senior vice president for human resources and chief human resources officer of the UNC System Office, laid out guidance on returning to onsite work during the pandemic. Universities in the UNC System are meant to continue promoting telework “to the extent practicable for most non-mandatory employees” until North Carolina enters Phase 3 of reopening, he said. 

Knorek said the plaintiffs want a policy where all employees who can perform essential functions of their jobs remotely can do so, without having to submit Americans with Disabilities Act forms or proof of a pre-existing condition.

Currently, UNC-CH’s Office of Human Resources states that employees who don’t have a health condition that impacts their ability to work onsite should contact their dean, department chair or supervisor to request flexibility. 

But Knorek said that process can be subjective.

Brody’s document states that requests for employees who don’t qualify under the ADA, but want workplace flexibility regardless, will be made after considering feasibility, business need, risk assessment and burden placed on other employees. 

Alternative arrangements could include telework, alternative or remote work locations, reassignment and more intense on-site social distancing methods. The guidance also states that employees have a responsibility for talking with supervisors and institutional offices to request COVID-19-related work accommodations, and that they shouldn’t “presume such arrangements are an automatic entitlement without management approval.”

“No ‘one-size-fits-all’ approach”

Secretary of North Carolina Department of Health and Human Services Mandy Cohen said in an affidavit on Aug. 12 that her team has been in continuous consultation since March with leadership in higher education, including the Board of Governors and the UNC System. Cohen said colleges that comply with CDC and DHHS guidance can return to in-person instruction. 

But if data trends significantly become worse, the state will address pandemic-related issues at institutions, which could include transitioning to entirely remote instruction. 

“Allowing schools to resume in-person instruction is a priority and we are opening schools in a manner that is consistent with our cautious, dimmer-switch approach,” Cohen said. 

In one of the documents, UNC System President Peter Hans acknowledged the range of fall semester plans across the 17 system institutions, saying that it “reflects the practical reality that there is no ‘one-size-fits-all’ approach when it comes to emergency preparedness and response.” 

The responses of UNC-CH, N.C. State University, East Carolina University and UNC Charlotte — all of which have either shut down or delayed in-person instruction in the past month — are indicative of careful planning from the System and individual institutions in coordination with local public health authorities, Hans said.

“I have every confidence that the UNC System collectively is up to the challenges posed by COVID-19 and continue to believe our planning and preparation efforts underway will enable us to meet those challenges,” Hans said.

Continued concerns across the System

Wendy Brenner, associate professor of creative writing at UNC Wilmington, is also a lead plaintiff in the case. 

She said not a day has gone by where she hasn’t received an email from a student who is going home, into quarantine or has tested positive.

“It's no longer hypothetical,” Brenner said. “We're not sitting around in summer talking about what will happen if some people get sick — it's happening now.”

UNC-W is one of 13 UNC System universities still offering a combination of in-person, remote and hybrid classes this semester. Though Brenner is teaching remote classes this semester, she said she is confused as to why requests to work remotely are not automatically granted. 

“The idea that you're trying to go about your business and then hundreds of people have this, I just can't fathom how this fits into their plans for the safe workplace,” she said. 

According to UNC-W’s COVID-19 dashboard, since July, 232 students and four faculty and staff have tested positive for COVID-19. The daily percentage of 150 reserved beds in use for quarantine and isolation has gone from four percent near the start of the semester to 39 percent as of Sept. 6. 

“It's hard to know what to hope for because, of course, I don't want the campus to get more dangerous than it already is,” Brenner said. “The idea that people will be — particularly workers who have the least choice, lowest level of choice, as to whether they must come in or not — that's just upsetting to think about."

“Our leaders have failed us”

Brenner said regardless of whether UNCW’s campus closes this semester, she does not think the issue will be resolved until there is a guarantee that employees are not required to be in an unsafe workplace.

UNC-CH announced the creation of a shared leave program in an email to faculty and staff on Sept. 2. The COVID-19 Shared Leave Program allows employees to contribute leave for their fellow employees who need time off for COVID-19-related reasons. 

Knorek said she thinks it is great for people to have access to leave they didn’t have previously, but employees should not be obligated or expected to donate their time. 

Caring for employees should be the responsibility of the UNC System, Knorek said. 

“It's clear that our leaders have failed us, they keep trying to tell us that they're not, but we’re not blind,” she said. “We have ears, we have senses, we are existing in this world — we're not stupid, like, stop gaslighting us into telling us what we're experiencing isn't actually happening, because you're doing it to us.”

@MaydhaDevarajan

university@dailytarheel.com