Liability Shields for Universities During COVID-19
We have written many pieces outlining the impact the COVID-19 pandemic has had on nearly every aspect of life over the last several months. So, as we send our daughters and sons back to their dormitories in the coming days, it’s hard not to think about the potential risk campus life presents for contracting coronavirus. The universities themselves have adjusted and readjusted their plans for testing, quarantine, housing, and live versus virtual classes.
Even with taking every precaution, the risk of students and faculty contracting COVID-19 is still significant. Because of that risk, universities must assess their legal options, recognizing that if someone on campus gets sick a lawsuit may be brought against the college or university.
Attempts are currently underway, at both the federal and state level, to extend immunity to colleges and universities, specifically as it relates to COVID-19. If lawmakers decide to extend immunity to colleges and universities, they may also issue specific guidelines schools must adhere to. Any such guidelines would likely state what they must be doing rather than just suggesting recommendations of ways to reduce the spread of the virus. Those would also likely exclude at least gross negligence and intentional misconduct from protection.
This is a thorny issue, as granting immunity to institutions is seen as very dangerous for the protection of students, faculty and staff, particularly those who don’t have an option to leave campus, such as international students.
Causation and Contributory Negligence
Aside from claiming immunity, universities could look to other defenses in the face of a lawsuit, including causation and contributory negligence. The former would seek to place the burden on the plaintiff to prove that he or she acquired the virus on campus or due to the negligence of the college or university, as opposed to contracting Covid-19 at another establishment or in another setting. Contributory negligence, meanwhile, would seek to show that it was the plaintiff’s carelessness (such as refusing to wear a mask, or attending large gathering off campus parties or events) which was at least partially responsible for the infection.
Universities can also consider and in many cases have already started providing faculty, staff, and students with an assumption of risk notice, or liability waiver before they return to campus, as a protection from litigation. But no matter what the forms are called — acknowledgments, codes of conduct, student compacts — some attorneys say they can help universities avoid financial repercussions of a COVID-19 outbreak on campus. Any such waiver must clearly and unambiguously express the university’s intent to be released from liability, as well as the scope of the conduct to be covered by the release – in this case, COVID-19 infections.
The waiver, however, generally cannot waive liability arising from intentional, reckless, or grossly negligent conduct, nor can the waiver be contrary to public policy, raising questions as to whether it would be upheld in court. As liability waivers are a matter of state law, enforceability can vary from state to state. Some states won’t uphold liability waivers at all, so COVID-19 waivers won’t work in those states.
Liability waivers are certainly not new, however in the COVID-19 era, people are being asked to sign them by many businesses and institutions not previously thought to pose even modest danger, such as schools.
Should a student sign a liability waiver? That’s difficult to answer, but a student should as a first step inform someone (parent) that they have been asked to do this. They should also consider why they are being asked to sign a waiver by the university to protect it from COVID-19 liability. Is the school offering the right protections to students and playing a proactive role in ensuring the health and safety of the students.
The bottom line is that the responsibility of protection must be shared between the institution or workplace, and students, faculty and staff. To mitigate the risk of liability in connection with COVID-19, universities should adhere to the safety guidelines established by the federal, state, and local public health authorities and be transparent to those on campus.
If you have any questions regarding liability protection for your business or need help with any COVID-19 related business issues, please get in touch with us here.
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