Reopening

Considerations for Catholic Schools

Schools must consider and address several areas to protect the health and safety of school community members while ensuring continuous education. Schools face no small task as they look to re-open this fall, but following government-issued guidance and working with local public health officials should make that task achievable.

Disclaimer.

Reopening Considerations for Schools

by Gabrielle Mercurio and Michael Kenney

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What guidelines should schools follow when developing a reopening plan?
Updated June 19, 2020.
  • Schools must take reasonable steps to mitigate the effect of COVID-19 on their school community and limit liability exposure for staff. What steps are reasonable will be fact-specific, but, in general, a reopening plan developed in compliance with federal, state, and local guidelines, such as the CDC’s Reopening Guidance for Schools, and in consultation with local health officials will likely be reasonable. The CDC encourages that a school’s reopening plan “should be guided by what is feasible, practical, acceptable, and tailored to the needs of each community.”
  • The CDC provides a decision tree to help schools determine if they should reopen. The school administrators and board of directors should consider each factor in the decision tree and document in writing the basis for the school’s determination that the applicable circumstances and safeguards are met.
  • Once a plan has been developed, schools should document the steps they will take to ensure a safe reopening and should communicate the plan to staff, students, and guardians of students.
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Can schools be liable if staff or students are exposed to COVID during school programming?
Updated June 19, 2020
  • Schools must act with reasonable care and adhere to public health guidelines in order to minimize any liability related to COVID-19.
  • The Occupational Safety and Health Act covers private schools either through the federal Occupational Safety and Health Administration (“OSHA”) or through OSHA-approved State Plans. According to OSHA’s Guidance on Preparing Workplaces for COVID-19, OSHA classifies schools as having a medium COVID-19 exposure risk and requires that schools develop a reopening plan in accordance with CDC guidelines.
  • OSHA articulates that employers have a “general duty” to prevent the occupational exposure to COVID-19 by furnishing a workplace “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Courts have interpreted this General Duty Clause as requiring employers to use reasonable care in protecting against known hazards. When determining if an employer has violated the General Duty Clause, OSHA may look to its own guidance documents as well as CDC guidance to identify the scope of an employer’s obligations to employees.
  • Thus, schools could be subject to an OSHA citation for failing to follow OSHA and CDC guidance concerning COVID-19. In addition, the OSHA violation may be used as evidence that a school acted negligently and should be liable towards an employee for a COVID-related work injury. Conversely, compliance with OSHA guidance may be evidence that a school took reasonable steps to provide a safe work environment.
  • While the risk of exposure to COVID-19 cannot be reduced to zero in the short-term, schools can follow OSHA’s COVID-19 workplace guidance and CDC interim guidance for schools to comply with their general duty requirement.
  • Schools have a duty of ordinary care for their students where the student is in custody of the school. This duty requires that the school “act as would a careful prudent person under all of the circumstances.” A school is liable for a student’s injury caused by a dangerous condition of premises that the school failed to make reasonably safe. Courts have held that adhering to CDC guidelines supports a finding that a school took reasonable steps to eliminate a danger and keep students safe.
  • The doctrine of charitable immunity, which provides a defense to a charity being sued for an injury caused by negligence, has been abandoned by a majority of states. However, some states, such as Virginia and New Jersey, make the doctrine narrowly available to educational institutions.
Will Congress consider liability protections for schools in the near future?
Updated June 19, 2020
  • Congressional developments on liability protection legislation can be tracked on Congress.Gov.
  • The American Council on Education and other higher education associations called on Congress to implement liability protections concerning COVID-19 for schools, just as entities such as the U.S. Chamber of Commerce advocated for such protections for businesses.
  • Senator McConnell already voiced intent to put forth liability legislation that will “create a legal safe harbor for businesses, nonprofits, governments, workers, and schools who are following public health guidelines to the best of their ability.” He noted that the protection is not blanket immunity, as schools and employers will remain liable in cases of gross negligence and intentional misconduct.
  • Opponents of liability protections have concerns that immunity would created is incentives for employers to protect their workers. In order to better insulate organizations from liability, some have suggested that institutions should implement a safety plan that takes into account employee feedback and approval.
  • Some states have introduced legislation that will shield businesses and other entities. Utah and Oklahoma have already enacted bills providing immunity from civil liability for COVID-related suits. The National Conference of State Legislatures provides up-to-date tracking of COVID-19-related liability protections in state legislatures, which can be accessed here.
Can or should schools require liability waivers related to COVID-exposure?
Updated June 19, 2020
  • Schools must recognize that no waiver can substitute the need to maintain a safe environment. Even if requiring a waiver, schools should comply with local orders, state regulations, and guidance from government agencies.
  • The enforceability of waivers depends on the state or jurisdiction, but generally the waiver must be clear, unambiguous, and explicit in expressing the intent to release a party from liability for conduct resulting in personal injury. Some jurisdictions will rule a waiver unenforceable if it is contrary to public policy.
  • Waivers typically do not apply to gross negligence or willful, intentional, or wanton conduct. Gross negligence is a legal term with a meaning that varies by state but is commonly defined as failure to exercise even slight diligence.16Factors that may suggest COVID-related gross negligence could include (1) failure to sanitize and disinfect facilities after known exposure to an infected individual; and (2) failure to warn entrants that an infected person had recently been in the building.
  • To mitigate the risk of liability, schools may wish to consider two kinds of waivers: (1) employee waivers and (2) student waivers.
  • Importantly, whether employee and student waivers will truly insulate businesses and institutions from liability remains to be seen. Regardless, schools should follow guidance from CDC, state, and local health authorities to keep premises reasonably safe.
  • Regardless of whether a school is requiring liability waivers, schools should consider articulating for the public the affirmative steps taken to minimize the spread of COVID-19, even if publication of the plan is not required under applicable state or local rules.
Would insurance cover any COVID-related claims by program participants or staff?
Updated June 19, 2020
According to an article published by the Nonprofit Risk Management Center, schools should review with their insurance broker to see if their organization’s policies cover COVID-related claims. Additionally, school leaders should understand what steps are needed to file a covered claim. Examples of policies which may provide COVID-related coverage include:
  • Business Interruption. According to Allstate, business interruption insurance generally covers loss of income and other financial impacts due to physical damage to property. Business interruption policy coverage varies widely, and some policies expressly exclude pandemics. A broker can assist your organization in determining whether your business policy would cover losses resulting from COVID-19 and the related government-mandated closures.
  • Directors’ and Officers’ Liability. Directors’ and Officers’ insurance generally protects directors and officers from liability for lawsuits alleging the directors and officers did not fulfill their duties to the organization. Director and Officer insurance may cover COVID-19 related claims related the leadership’s response to the risks of the disease, management of the resulting economic downturn, and implementation of government-mandated precautions.
  • Workers’ Compensation. Workers’ compensation coverage is a product of state law. A workers’ compensation policy generally covers claims related to injuries to a worker resulting from his or her employment. When and if aCOVID-related claim would be eligible for coverage will depend on the policy and the relevant state law. A community-spread illness that affects the general public is typically not covered by workers compensation laws. Some states, such as California, are extending coverage to COVID-19.
  • Event Cancellation. Event cancellation insurance generally covers loss of income and increased expenses resulting from an event cancellation. As with other policies, whether an event cancellation policy will cover cancellations related to COVID-19 will vary by policy.
  • General Liability. A general liability policy protects an organization from third-party claims of injury resulting from an act or omission of the organization. Some general liability policies exclude injuries resulting from pandemics, but many do not.
  • Environmental Insurance. Environmental insurance covers injuries that result from pollution or contamination. Current policies do not explicitly identify COVID-19 as a pollutant, but some policies do not exclude the transmission of disease caused by the environment from coverage.
  • Civil Authority Closures. A civil authority closure provision insures for business-income losses due to government actions that restrict access to property. Coverage will depend on specific terms and conditions of the policy.
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What types of screening are appropriate and legally permissible?
Updated June 19, 2020
  • The CDC states that schools are “not expected to screen children, students, or staff to identify cases of COVID-19.” If a school has positive cases of COVID-19, “local health authorities will help identify those individuals and follow up on next steps.” Still, if feasible, the CDC recommends conducting “health checks (e.g.,temperature screening and/or symptom checking) of staff and students . . .safely, respectfully, and in accordance with any applicable privacy laws or regulations.”
  • Given that schools have a duty to protect the health and safety of students, schools may perform health checks and send home students who exhibit signs of illness. To ensure consistency of screenings, schools should document in writing the health reasons for sending a student home. Confidentiality of health screenings also must be maintained, in compliance with the Family Educational Rights and Privacy Act, which protects the privacy of student education records, and the Health Insurance Portability and Accountability Act, which protects the privacy of patients’ health information.
  • The CDC suggests school screenings that mirror the CDC’s General Business FAQs for screening staff. COVID-19 screenings of staff must comply with the Americans with Disabilities Act (“ADA”) to avoid concerns over privacy and discrimination.
  • Some re-opened schools administer temperature checks of students at the door. For example, a small school in Montana that re-opened in May for the last few weeks of the school year conducted temperature checks of all students at the school’s entrance as a part of its safety procedures.
What type of training is needed for staff and volunteers?
Updated June 19, 2020
  • The CDC recommends that schools train all staff and volunteers in CDC safety actions and guidelines (listed on pages 42-44 of the CDC Activities and Initiatives Supporting the COVID-19 Response)
  • Any new volunteer or staff member must be trained before beginning work at the school. Routine trainings should be held to keep staff and volunteers up-to-date on the latest COVID-19 information. If possible, schools should consider training virtually. If in-person, schools should ensure that social distancing is maintained throughout the training. The CDC provides a checklist to help teachers plan and prepare to promote healthy habits during the school year. Schools should also cross-train staff on critical functions and positions in the event of absenteeism to ensure continuity of operations.
What key issues should be addressed in a reopening plan?
Updated June 19, 2020
  • Prioritize health and well-being of students and staff while maintaining educational programming. Develop multiple plans based on the level of community transmission so that the school is ready for any COVID-19 situation, such as a positive COVID-19 case in the school.
  • Educate staff, students, and guardians of students on healthy practices regarding hygiene, social distancing, cleaning and disinfecting, and how to wear face coverings. Train staff on all safety protocols and provide parents training materials and documents offered by the CDC or state/local health officials. Encourage talking to students and children about how they can also help prevent the spread of COVID-19.
  • Communicate the reopening plan to students, staff, and guardians. Be transparent about the reasoning behind the school’s reopening plan and show that the school worked closely, and will continue to collaborate, with local health authorities to monitor the situation. Maintain regular communication by displaying CDC resource posters in classrooms and staff rooms, sending virtual reminders of everyday preventive actions, and updating school community members on any COVID-19 developments.
  • Implement strategies to protect students at school. Encourage social distancing using approaches such as: turning desks to face the same direction, raising barriers between seats if 6-foot distancing is not feasible, limiting the use of shared items, grouping students in cohorts that remain in their classrooms, and closing large, shared facilities.
  • Tailor risk-mitigation measures based on OSHA guidance’s classification of employees. For example, most schools have (1) teachers, (2) front office workers, and (3) building staff. The school should profile the risks of each and develop appropriate protocols.