Mitigating legal risk for reopening
Legal Risk During COVID-19
SREB Higher Education Recovery Task Force
May 14, 2020
Jim Keller, a member of the National Association of College and University Attorneys, spoke with task force members at their May 14, 2020, meeting. Keller is co-chair of Saul Ewing Arnstein & Lehr’s higher education practice in Philadelphia.
No one knows what the future of the coronavirus pandemic will bring, from the health or legal perspectives, Keller told task force members. But we can identify some hotspots for liability and strategies to mitigate them.
Mitigating Legal Risk
as Campuses Reopen During COVID-19
Risk and Liability for Measures to Prevent Spread
When they reopen, and perhaps until we have a vaccine, institutions will need to require that people use personal protective equipment and engage in social distancing – in the classroom, in the cafeteria and perhaps campus-wide. Institutions will need to consider student and employees, but also visitors to campus, which may be the most difficult group to identify and protect.
Personal protective equipment
Practical considerations: Some people will not like these requirements and may protest, as is their First Amendment right in appropriate public forums.
Personal injury risk: There is some personal injury risk in requiring people wear masks. Masks can obstruct vision, entangle with other objects, and become breeding ground for bacteria if they are not cleaned properly.
Mitigation strategies
Offer training: Provide training on the proper use of PPE to mitigate personal injury risk.
Update conduct codes: Review and consider revising the student code of conduct, employee handbook and faculty handbook to be sure they address ─ as explicitly as possible ─ social distancing, PPE and other requirements. Students, faculty and staff are bound by these provisions, and this gives you leverage if people do not comply.
Student housing
How can institutions enforce social distancing with so many young people living in residence halls, some with communal bathrooms?
Revise contracts and handbooks: Keller said colleges should update residence hall contracts and handbooks to make it crystal clear that adherence to social distancing, PPE, and local, state and national public health guidance is part of students’ obligation and responsibility to the housing community. If students have already signed contracts for the upcoming year, they should have to sign the new, revised contracts.
Temperature checks
We’re in a unique time, Keller said, and you have significant legal comfort from the Equal Employment Opportunity Commission and health officials to conduct temperature screenings.
Normally, institutions cannot force a medical exam, including a temperature check, he said. But in some states, temperature checks are mandatory for any business reopening, and institutions can rely on guidelines from the EEOC and national, state and local health officials.
Underlying medical conditions
Colleges may want to know who may be at higher risk from the coronavirus so they can better protect them. But proactively asking about underlying medical conditions comes with legal risk, Keller said. Asking students, faculty or staff if they have an underlying condition that might put them at greater risk from COVID-19 clearly violates Americans with Disabilities Act or Section 504.
However, if a student or employee voluntarily discloses an underlying condition, at that point, the institution would be in a normal disability interactive process and within its rights to act on that information. If an employee or student says they need accommodations, there is a process to make that happen.
Do what you think protects your campus and keeps people safe, Keller said, noting that his role is to point out our potential risk and ways to mitigate it.
Employees Who Refuse to Return to Campus
What are the options if an employee refuses to return to the physical campus when it reopens? Employees who are older or have have health risks may insist on continuing to work remotely.
Practical accommodations: Institutions may want to look for practical solutions, such as looking at student reviews of a faculty member’s online teaching. If the employee volunteers information on an underlying health risk, an institution can ask for medical documentation.
Termination: If employees refuse to return to campus and the institution believes they are failing to uphold their responsibilities, despite accommodations for medical conditions, there could be legal grounds for termination. The institution should weigh public relations risks as well, such as “Faculty fired because they don’t want to die” headlines.
Claims and lawsuits
Claims could come from students, parents, vendors, visitors or employees. Keller focused on students and employees.
Breach of contract
A student might allege that she relied on representations that the institution is a safe and healthy environment, that these claims were fraudulent and you breached the contract. You touted campus as safe and this promise wasn’t kept.
Mitigation: Make sure documents such as the enrollment contract are airtight. Be sure to carefully review everything on the institution’s website, Keller said, specifically looking for language about a safe campus.
Negligence
Negligence is a more likely claim. The basic elements of negligence are duty, breach, causation and foreseeable injury.
There is currently a lot of uncertainty about this, Keller said, and there will be a lot of case law made in this area. What is the scope of the institution’s duty to make campus safe from COVID-19 to prevent people from getting sick?
The question of an institution’s duty will be decided by a judge. The question of whether you breached is a question of fact for a jury. Just as you would remove ice from a sidewalk, if you know of a COVID-19 case on campus you have a duty to address it. You should not be liable for the first case, but if steps are not taken to make campus safe once a case is identified, negligence may apply. Some states do have caps that apply and certain public institutions may have limited sovereign immunity.
Tuition, fees and class action
Keller said there are now 80 of these cases around the country. Students want refunds because they claim full value of what they paid (if no refund given) was not met because spring semester was cut short. Most colleges will be sued eventually, he predicted, and spring 2020 suits may be a preview of what to expect if campuses must close again for future waves of the disease.
Housing and fees: If you couldn’t use housing because campus was closed, this is a common sense argument — a pro rata refund makes sense, as might refunds on some fees.
Tuition: The obligation is that the institution teaches and the student gets credit toward a degree. That’s still happening, so there are good defenses against these claims. He doubts class actions would be allowed for tuition but of course doesn’t know for certain.
Q&A
Keller took questions from task force members.
Mandating virus testing, masks and health practices
Can an institution legally require mandatory testing? Can it require masks in classrooms and other enclosed spaces?
The short answer is yes: we’re in a public health emergency. State and local health requirements may already require this. If not, Keller said he thinks you can and should, for the greater good. People may protest this, and we can’t know now how those cases will play out. If a judge rules that you cannot make people wear masks, that is your answer.
If a state only suggests face coverings rather than requiring them, can an institution be more stringent?
Yes, just like other restrictions that may not be mandated. You may be challenged, and public institutions might be more subject to challenge.
Can an institution send home students or employees for ignoring recommendations such as hygiene practices?
Yes, if you have revised your code of conduct appropriately. Might they sue you? Yes.
Can an institution require employees to monitor their own temperature at home?
How would an institution enforce this? They may want to make this a guideline for students and employees rather than a mandate.
Campus responsibility for tracing, quarantine
What is an institution’s responsibility, in cases that occur on campus, to trace contacts and provide quarantine areas?
We do not know yet. This will be up to public health bodies. Contract tracing responsibilities and requirements are still evolving.
Mitigation: If someone is diagnosed, quarantine them, off campus if possible. Verify that the individual is COVID-19 negative before allowing them back on campus.
Underlying conditions
Can a college ask faculty to disclose underlying conditions?
This carries risk and he would be wary, Keller said, but it might be defensible. What is the nondiscriminatory purpose of asking? If the institution’s leaders understand the risk and thinks it needs to ask, then do so.
Can an institution require documentation from someone who claims they have an underlying health condition?
Yes, just as for any other disability claim. Colleges should ask for documentation.
Privacy claims
Does the public health emergency override claims to privacy or other rights?
The law may evolve to answer that question. People have privacy rights, but there are always exceptions. Public health and safety, direct threat to others, and pandemics are the kinds of things that justify incursions on those rights. We do not know yet.
Alternative work options
Can you require employees who do not have underlying conditions and are not considered high risk or vulnerable to return to work, or do you have to provide alternatives?
Legally, an institution does not have to offer alternatives, but there are no prohibitions against doing so. An institution may wish to offer choices, such as continuing to teach online, if it has the resources and thinks online teaching is adequate.
Notifying campus
Does the Clery Act require institutions to make an announcement to protect the health and safety of the campus community?
The U.S. Department of Education issued guidance April 3 that institutions should provide a single emergency notification about COVID-19 and general precautions or create a banner on the institution’s website containing information on the institution’s efforts to mitigate the threat. That satisfies your obligation, according to the department. Regular, ongoing updates or notification of changing conditions or new cases is not required, though an institution could consider ongoing notifications if it deems it appropriate.
Student fees
What about student fees for wellness, recreation, student union while students are studying online?
Some institutions have returned a pro-rated portion of fees for the spring term or waived fees for summer. Moving forward, institutions can revise enrollment contracts, handbooks and catalogs to clearly specify that fees apply regardless of mode of instruction (online, in-person or hybrid).
There is some risk, Keller said. If an institution charges a “sitting on the quad fee” while campus is closed, it will likely lose that lawsuit. Institutions might wish to tailor fees to what students are actually getting.
