As Ohio’s governor warns
about an increase in coronavirus cases, school districts are asking
if they’d be at fault for potential outbreaks of COVID-19. During
this reopening of schools, will there be unprecedented filings of
workers compensation claims if teachers get sick? Who will parents
blame if their children contract the virus at school? We are entering
uncharted waters, and we must do so with extreme caution. One caveat
exists – know the rules.
Teachers with pre-existing
conditions are already telling their districts their concerns about
returning to the classroom even with the recommended face
mask-wearing by students, frequent cleaning, and six feet of social
distancing. And, if they do become infected and get sick, consider
the difficulty of their proving they've contracted the coronavirus in
their schools. This could become a real nightmare.
Person-to-person spread at
school facilities is not the only worry. For example, teachers,
students, and other staff return home to many more potential victims,
many of them also with pre-existing conditions. Because children so
rarely develop severe symptoms, experts have cautioned that open
schools might pose a much greater risk to family members and the
wider community than to students themselves.
What protects schools from
legal action? School districts are given sovereign immunity to help
protect them from personal injury claims. However, doors open to
liability if evidence proves a school was “reckless” or
“negligent” in safety procedures and violated state orders or
mandates by the Centers for Disease Control and Prevention (CDC).
Most of Ohio schools’
new safety guidelines fall under “recommendations" for the
fall. That means they currently are not orders or requirements. Many
schools are also asking students and parents to sign liability
waivers as an extra layer of protection. Those waivers are binding in
court if, again, negligence and recklessness cannot be proven.
(Lisa Rantala. “School
districts ask who will be at fault if coronavirus outbreak occurs
after reopening.”
Columbus ABC 6. July 17, 2020.)
Proponents of liability
shields argue that the proliferation of waivers shows there’s
demand for a federal standard, while opponents say employers and
academic institutions shouldn’t be given the green light to be
negligent when it comes to protecting workers and students.
The waivers, however, are
seen as a poor substitute for blanket immunity. John Witt, a
professor at Yale Law School, says …
“The immunity
legislation is like a sledgehammer where the waivers are like a
scalpel. The waivers only apply to people who sign them, not to
family members who catch it from someone who signed it, for example.”
Legal experts say waivers
act as a strong deterrent to keep people from taking legal action.
For example, a Trump rally attendee who contracts coronavirus after
signing a waiver acknowledging the health risks may be less likely to
file a lawsuit.
Tom Baker, professor at
University of Pennsylvania’s law school, says …
“I think waivers are
quite effective even if they’re not legally binding because people
feel that they signed it so therefore they don’t even talk to a
lawyer, even if there are some technical details that aren’t well
worked out.”
The Hill. June 18,
2020.)
Daniel A. Domenech,
Executive Director of the American Association of School
Administrators, was asked the following question:
“Do schools face
greater legal liability from failing to provide an adequate education
to students or from students getting sick from the virus?”
Domenech's answer …
“There is liability
in providing inadequate services, or no services at all, and there
will be liability if children or adults get sick in a school that has
opened. Would we rather be sued for providing inadequate services or
for the death of students and staff? It’s a lose-lose situation
either way, but superintendents will do their very best to provide
adequate services in a safe and healthy environment.”
Will Ohio school districts
be held “at fault” for outbreaks of COVID-19? Sovereign immunity
and liability waivers certainly address concerns. Still, nothing can
guarantee full compliance with safety measures enacted by school
districts. In order to assure successful person-to-person
instruction, parents must be fully transparent about their students'
daily health problems. One sick student during one school day could
trigger an outbreak that would infect and quarantine hundreds of
people.
Hope and trust are surely
parts of the equation to keep schools in session this fall. So much
depends upon the full cooperation of the community. Just consider the
word “liability.” The word means “the state of being
responsible.” This virus will test the limits of responsibility of
humans in a particularly stressful environment. Our health depends
upon accountability like never before. There is ample reason to fear
in Scioto, a county ranked annually as one of the “unhealthiest
counties in the State of Ohio.”
No comments:
Post a Comment