COVID-19 at Ohio Schools -- Liability Concerns

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.”

(Alex Gangitano. “COVID-19 waivers emerge as flashpoint in absence of liability shield.”

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.”