As the school year gets underway, districts everywhere are grappling with how to ensure safety as they consider strategies and approaches for in-person instruction. One topic that has arisen to complicate reopening plans is whether schools can be held liable if students or staff are infected. There is currently no federal policy in place to protect school and district leaders, and liability remains a significant factor as they carefully measure their reopening plans and how to keep students and staff safe. In addition to the health and safety concerns in their buildings, principals across the country may be wondering how they can stay protected and whether they need liability coverage.
Follow the Guidance
Kellie Newton of Whiteford, Taylor & Preston LLP offers expert advice on the matter: “We lawyers are getting this question quite a bit these days: Can principals be held responsible for COVID-19 infections tied to the school facility? It is difficult to provide a reliable response for these unprecedented circumstances. Many schools are trying to get ahead of the liability issue by requiring waivers before students return to the classroom, but it is yet to be seen whether states will find those waivers valid.”
Several states have considered legislation to limit liability for K–12 schools and higher education institutions, but depending on where and until such legislation goes into effect, school and district leaders may be mired in uncertainty. “Without federal or state laws enacted specifically to protect individuals against COVID-19 claims, courts would look to existing laws created in very different times to assess liability for damages attributable to the coronavirus,” Newton said. “At least 26 states have passed or are considering such laws. On September 14, Ohio enacted H.B. 606, which provides state law immunity for “damages for injury, death, or loss” related to the “transmission or contraction” of COVID-19. The protection of the law is retroactive to March 9, 2020, but is set to expire on September 30, 2021. In July, the U.S. Senate introduced the SAFE TO WORK Act to protect some businesses and schools from COVID-19 lawsuits. The bill, if passed, would preempt state statutes providing similar relief.”
Other state legislation enacted or currently under consideration:
- Idaho—H.B. 6 grants state recognized entities, including school districts, colleges, universities, and other higher education institutions limited immunity from liability.
- Louisiana—H.B. 59 provides immunity from civil liability for public schools, charter schools, and public higher institutions during states of emergency or public health emergencies for infectious disease.
- New Jersey—A.B 4426 would grant immunity from liability to public school districts, private schools, and employees for damages resulting from the coronavirus.
- Arizona and Tennessee considered similar measures, though neither piece of legislation passed.
“Those laws offer clarity, but no state or federal law will shield individuals from liability for willful and wanton misconduct, gross negligence, or similar conduct,” Newton cautioned. “So, the clearest message we can deliver to principals right now: If principals follow applicable guidelines from the CDC, state and local governments, and school districts, a strong argument can be made against holding principals liable for COVID-19 illnesses.”
Other articles further address the liability matter for school leaders during the pandemic:
- States Consider School Liability Protections
- How benchmarks, health advice, insurance guide schools’ re-opening plans
- Schools May Get Sued Over COVID-19 7. Things to Know About Managing That Risk
- Using waivers to curb COVID-19 legal exposure
Finding Peace of Mind
While it may be difficult to hold principals liable in cases of COVID-19 exposure, that doesn’t mean litigation won’t be brought against them. Civil lawsuits have increased in the past few decades, generating expensive legal fees even if a claim is unwarranted. Additionally, with so much learning shifted to remote or hybrid environments, technology can change the landscape and create vulnerabilities for educators and school leaders. Videos and screencaps can be altered, and misinformation can spread easily on social media.
Although many districts have insurance, that protection extends to the district and may not cover the school leader in their individual capacity. Liability policies are catching up to the current circumstances, and may exclude communicable diseases from their coverages, leaving districts to cover their own legal costs stemming from a civil lawsuit alleging the district failed to protect them against exposure to infection. NASSP membership offers individual legal protection and liability coverage of up to $2 million for members of unified states ($1 million for nonunified states) and protects members from accusations that the principal by commission or omission created an unsafe environment. During times of uncertainty, that security is invaluable.
Kellie L. Newton is a partner of Whiteford, Taylor & Preston LLP.
Bob Farrace is the chief communications officer of NASSP.