Whole Foods Market workers board up their store after a racial justice protest in the Brooklyn borough of New York in June. Two workers from Whole Foods in Portland, Maine, have stepped forward in a court case determining hazard pay increase for essential workers, which was approved by voters in November, 2020. Credit: Frank Franklin II / AP

PORTLAND, Maine — A lawsuit challenging the legality of a voter referendum that requires employers to pay Portland workers more during states of emergency is expected to reach the courts on Wednesday.

The case will decide the fate of an ordinance affecting roughly 9,000 essential workers in Portland. City voters in November approved by a 62-38 margin a mandate that employers in the city provide hazard pay at a rate of 1.5 times the hourly minimum wage during the pandemic.

Justice Thomas Warren will hear oral arguments from both sides on Wednesday in Cumberland County Superior Court.

The Portland Regional Chamber of Commerce filed a lawsuit in December, asking the court to invalidate the emergency provision, calling it “unconstitutional.” Attorneys representing the Chamber and five Portland businesses argue that the emergency wage increase is an “administrative issue” and not a legislative one, and therefore exceeds the scope of what voters can effect by popular vote.

Attorneys representing two Portland Whole Foods workers intervening in the suit called the Chamber of Commerce’s legal challenge “shockingly anti-democratic.” They argue that under state law, Portland does have authority to enforce the ordinance unless otherwise “expressly denied” by the Maine Legislature, and warn that striking it down could open the door to invalidate other citizen initiatives passed by voters.

The Whole Foods workers, Caleb Horton and Mario Roberge-Reyes, are asking the court to uphold the voter initiative and enforce it retroactively from December as initially expected.

During the campaign, it was widely acknowledged by the referendum’s backers and opponents, as well as Portland City Council, that hazard pay would take effect in December. But following the vote, lawyers for the city interpreted that the ordinance would not take effect until Jan. 2022.

The Whole Foods workers “interact with hundreds of people a day at great personal risk” and had to take on additional duties during the coronavirus pandemic, like enforcing the store’s social distancing and mask-wearing guidelines.

Horton and Roberge-Reyes have had to isolate themselves from friends and family due to working at Whole Foods and “have experienced significant stress and anxiety” knowing that their work puts them at increased risk of infecting family and others they live with, according to attorneys from Johnson Webbert & Garvan, a Maine law firm in Portland and Augusta representing the workers.

“They are asking the court to rule that voters can’t have a say on important issues like the local minimum wage, even though the law guarantees voters that right. The Chamber is clearly afraid of the voters of Portland: they lost at the ballot box, and they are now trying to undo the will of the voters in the courts,” said Shelby Leighton of Johnson Webbert & Garvan.

Attorneys for Horton and Roberge-Reyes allege that at least 13 Whole Foods employees have tested positive for COVID-19 since November. Responding to a Dec. 22 inquiry, the Maine Center for Disease Control and Prevention had not opened an outbreak investigation associated with Whole Foods, saying that with widespread community transmission, it is more possible that multiple employees of a business that employs lots of people could contract the virus through exposure in their household or community rather than through their workplace.

A worker at the supermarket who requested anonymity for fear of reprisal said that they received multiple notifications during the week before Christmas alerting them to positive COVID-19 cases among staff.

An independent study by the Maine Center for Economic Policy, a liberal think tank, found that at least 9,700 workers would be impacted by the emergency hazard pay ordinance, with only 1 in 8 of those under the age of 20. The ordinance would also rectify wage disparities by gender and race, with larger shares of women and Black, Indigenous and other workers of color seeing a wage boost.