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The Reopening Dilemma

By Jeffrey Shields posted 07-21-2020 01:07 PM

  

CEO Notebook |

As schools are focused on creating safe learning communities, new legislation seeks to protect schools and other essential businesses from potential COVID-19 related liability.

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Jeffrey Shields, FASAE, CAE
NBOA President and CEO

Independent school leaders face one of the most challenging dilemmas of their careers as they consider reopening this fall for face-to-face learning. First and foremost, school leadership and trustees want to follow the best guidance available to create safe and healthy learning communities for students, faculty and staff. When guidance varies depending on context and local circumstances, however, it’s not easy to decide whether to start with face-to-face learning or an online learning alternative.

A critical question from a fiduciary perspective is this: “Even if we give our very best effort to safely welcome students, faculty and staff back to our campuses, will we be held liable if a member of our community becomes infected with COVID-19? Might we shoulder an even greater financial burden in addition to the investments we are making to ensure everyone’s safety?”

"Might we shoulder an even greater financial burden in addition to the investments we are making to ensure everyone’s safety?”

The American Council on Education, representing the nation’s colleges and universities, as well as business groups like the U.S. Chamber of Commerce, have been pushing for liability protection, fearing lawsuits as colleges and businesses reopen. Now Senate Republicans have proposed a safeguard for employers of America’s frontline workers, including teachers and school staff. The proposed legislation, currently under review by the Trump administration, would provide temporary protection from the trial bar for schools, colleges, nonprofits and businesses that follow public-health guidelines.

NBOA Legal Counsel Grace Lee of Venable LLP explained, “If passed, this legislation would provide much needed clarity to independent schools worried about potential personal injury cases despite taking reasonable efforts to implement safety measures and comply with public health guidelines.” Her understanding and insights into the proposal align with those outlined in a recent Inside Higher Ed article on the issue.

Some of the temporary protections that would apply to independent schools include:

  • Creating an exclusive federal cause of action for personal injuries arising from coronavirus exposure allegedly caused at a school, meaning all lawsuits would be heard on the federal level.
  • Ensuring that defendants are liable only if they failed to make reasonable efforts to follow applicable public-health guidelines and committed an act of gross negligence or intentional misconduct.
  • Imposing procedural rules, including concurrent federal jurisdiction, over all claims covered by the statute, heightened pleading standards, a burden of proof that requires clear and convincing evidence, class action disclosures and damages caps.
  • Employer protection from liability and from agency investigation under federal labor and employment laws for actions taken to comply with stay-at-home orders and other public-health guidance.
  • Employer protection from liability for injuries arising from workplace coronavirus testing.

Defendants could also move a case to federal court, which could be more favorable than state courts, according to the article. The changes being proposed would run through 2024.

While school leaders consider the best guidance available, the unique characteristics of their schools’ buildings and grounds as well as the demographics of their student populations, this legislation may provide additional peace of mind that schools will not be punished for their best efforts to consider the community’s needs.

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Follow NBOA President and CEO Jeff Shields @shieldsNBOA.
From Net Assets NOW, July 21, 2020. Read past issues of CEO Notebook.

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