Liability or Not? Schools Reopen With Questions on the Table

K-12Postsecondary & Workforce

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Following increased interest in liability issues in school reopenings, we compiled information on liability protections for K-12 schools and higher education institutions at the federal and state levels. This is the first of two blog posts that explores this issue.

As schools and districts continue to negotiate the safest mode of learning this year, the question of whether schools can be held liable for infections to students or staff looms large. This issue has been gaining a lot of attention lately with various news outlets reporting on the topic, and state and congressional action.

A recent Education Dive article discussed whether schools will require the anticipated COVID-19 vaccine or face liability for potential infections and spread in schools. The article quoted an education lawyer, stating: “Liability might exist if a school requires students and staff to attend in-person and then refuses to follow mandated safety protocols.” Some legal experts say that as long as K-12 schools and higher education institutions abide by public health guidelines from state or federal agencies (e.g., CDC), liability may be mitigated.

Others indicate that the proof required to show that the school was where the infection took place would be difficult to provide. The burden placed on the plaintiff to prove that the infection was caused by failure by the school to abide by public health and safety guidelines (reasonableness, negligence or willful misconduct) and that act, or failure to act, resulted in infection is a high hurdle and varies across states.

Federal Response to Liability in Schools

Congress currently has two competing proposals on the table to provide some protections to essential workers and employers respectively. The HEROES Act, passed by the House, would provide protection for employees from occupational exposure to COVID-19 under the Occupational Safety and Health Act that was passed by the House in May. The SAFE TO WORK Act, part of the Senate’s HEALS Act proposal, would include protection for businesses, employers and schools if employees or students are exposed to Coronavirus on-site, unless willful misconduct on the part of the employer or school is proven.

As of July, the federal government has not provided guidance regarding liability protections to higher education institutions. However, some institutions and associations have reached out for federal assistance. For example, a letter to the U.S. Congress urges temporary and targeted liability protections for higher education institutions related to the COVID-19 pandemic. The letter is cosigned by state and national associations for institutions of higher education, including regional compacts:

On May 13, 2020, White House officials met with 14 higher education leaders regarding the COVID-19 pandemic and educational services. This discussion included higher education liability protections, but no additional details were provided at this time and no federal or state agency has provided protections to higher education institutions.

The federal government and the Centers for Disease Control provided guidelines for higher education institutions and guidance for returning to school (K-12 and child care) during the COVID-19 pandemic. These guidelines do not include provisions regarding liability insurance or protections. Education Commission of the States will continue to track states’ plans and policies on our COVID-19 resource page. While there are not federal protections currently, states have been taking action. To learn more about state actions, keep an eye out for our next post that highlights state legislation and state policy on liability protections for K-12 and higher education institutions coming soon.

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Senior Policy Analyst at Education Commission of the States

As a senior policy analyst, Meghan works on K-12 accountability and early childhood education, among other P-20 education policy topics. Prior to joining Education Commission of the States, Meghan spent six years at the National Conference of State Legislatures, focusing on human services policy, and earlier, at the Colorado General Assembly as a legislative aide. Meghan believes that education has a tremendous impact on, and is greatly influenced by, other governmental systems, including child welfare, public assistance, housing and health.

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Policy Analyst at Education Commission of the States | dpechota@ecs.org

As a policy analyst, Damion provides research and analysis on a diverse set of state-level education issues. Prior to joining Education Commission of the States, Damion worked as a senior policy analyst with Legislative Council at the Colorado General Assembly. Damion is dedicated to the idea that a nonpartisan perspective can enhance the discussion and understanding of state education issues from early learning to workforce development.

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