The complaint alleges "UNC and its constituent Institutions cannot, in the face of this pandemic, provide conditions and places of employment safe or 'free from' recognized hazards associated with COVID-19 by returning students to these campuses and the communities in which they are located under the current plans, where they will live and learn in poorly ventilated dormitories and class room spaces, be expected (as college-aged students) to fully comply, both on-campus and off-campus, with the "mandatory" mask and "social-distancing" rules, when, as of the date of the filing of this Complaint."
The complaint was filed Monday, August 10, the first day of classes at UNC and NC State.
A week later, following four clusters of COVID-19 at UNC-Chapel Hill, Chancellor Kevin Guskiewicz announced that undergraduate instruction would be moved remotely beginning Wednesday. Gary Shipman, a Wilmington-based attorney representing the plaintiffs, said the decision only reinforces their argument.
"It makes it abundantly clear that faculty members, staff, UNC system employees who are forced to work in these conditions are at an increased risk of exposure and therefore illness," Shipman explained.
The complaint requests faculty have the ability to work remotely should they choose, as well as expanded PPE and protections for essential workers and those who choose to remain on-campus. In their filing, the plaintiffs allege their health is being threatened.
"Anyone who gets sick from exposure in a work environment has no guarantee of workers' compensation benefits in this state because COVID-19 is not recognized as an occupational disease," Shipman said.
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"The university has put students and campus workers in an untenable situation to begin with. We don't think it's possible, especially with the living situation in the dormitories, it's simply not possible to have that many people live in that close quarters, without regularly testing them, and not have massive outbreaks," said John Hedlund, a graduate teaching assistant at NC State University who is a plaintiff on the suit.
Hedlund said in an ideal situation, he'd be in the classroom, but during the COVID-19 pandemic, remote teaching is more effective.
"We can actually provide a better teaching experience online, rather than in person where people are wearing masks, students are not able to communicate with one another, they're not able to work in small groups," Hedlund said.
In a statement Monday, UNC System President Peter Hans emphasized the shift to remote instruction at UNC-Chapel Hill does not impact other UNC campuses, adding, "Each campus is different, and I expect situations to evolve differently. In any circumstance, we will be grounded by reliable public health data and prevailing local health conditions. I will continue to stay in close contact with our chancellors and fully support their efforts to fulfill our core educational mission in safe learning environments."
Shipman said he felt other campuses should follow suit.
"I'm pleased that for the safety of at least those in the undergraduate departments of UNC-Chapel Hill that someone made the right decision. I keep waiting for that right decision to be made at all off the UNC system campuses before campus-by-campus we see the same results that we're seeing at UNC-Chapel Hill. There's no reason to believe that the results will be any different," Shipman said.
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While the UNC System does not comment on pending litigation, affidavits filed in response to the suit provide perspective on their position. One declaration notes eight of the 17 plaintiffs listed, including Hedlund, are not required to report to campus, and adds that there are no employee plaintiffs from Winston Salem State University, UNC School of the Arts, UNC Greensboro, North Carolina A&T State University, UNC Pembroke, Fayetteville State University and Elizabeth City State University. Hedlund encouraged staff who support the complaint to sign on as plaintiffs.
Other affidavits submitted on behalf of the UNC System also touch on safety measures the universities have taken to protect people on campus.
Dr. David Weber, a professor of epidemiology at the Gillings School of Global Public Health and the Medical Director at UNC Hospitals' Departments of Hospital Epidemiology (Infection Prevention), wrote,
"The potential for the indirect transmission of the virus (by touching surfaces) can be effectively managed by routine hand hygiene and use of appropriate disinfectants. Accordingly, in my opinion, the proper use of the measures above (particularly face coverings and appropriate physical distancing) is sufficient to protect faculty and staff who return to campus for in-person instruction and other educational activities. Universities are uniquely equipped to make sure that these precautions are observed in the presence of faculty and staff while on campus."
In a separate declaration, Secretary of Health and Human Services Dr. Mandy Cohen wrote, "We have consulted with leadership at the UNC System regarding the risks of COVID-19 and the need for protective measures and will continue to consult with them on a regular basis. 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."
The complaint was originally scheduled to be heard Wednesday, though it was removed from the judge's docket late Tuesday afternoon. No new date has been set at this time.
To view the class complaint, click here.