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
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.
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.
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.
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
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 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.
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
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
We do not know yet. This will be up to public health bodies.
Contract tracing responsibilities and requirements are still
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.
Can a college ask faculty to disclose underlying
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
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
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.
Does the Clery Act require institutions to make an
announcement to protect the health and safety of the campus
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.
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.
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