As school begins in earnest, districts are struggling to get their arms around an elusive but potentially costly challenge: risk management in the age of coronavirus.
Most if not all districts buy general liability insurance, either self-insurance through a traditional insurance company, or through a pooled plan open-managed by representatives of participating districts.
Even before COVID-19, some of these liability policies excluded communicable diseases from coverages. In other cases, insurers have notified districts just in the past few months that they will not cover claims stemming from the pandemic鈥攕ometimes because they too could not secure reinsurance to cover potential claims.
That means that many districts are potentially on their own to cover legal costs and damages stemming from a civil lawsuit from a parent or student alleging that they contracted COVID-19, due to a district鈥檚 failure to protect them against exposure to infection.
There is little existing guidance about how districts should prepare. That鈥檚 making some districts鈥� chief financial officers worry they could be one liability lawsuit away from bankruptcy.
鈥淚鈥檓 extremely worried,鈥� said Sharie Lewis, the director of business and operations at the Parkrose public schools in Portland, Ore. 鈥淲hen someone dies, you can鈥檛 in any way soothe their pain, but historically, one way people have tried to soothe their pain is through financial recourse, and that is lawsuits. School districts aren鈥檛 prepared anywhere in the country to handle that kind of loss.鈥�
Though largely missing from mainstream news coverage, liability remains an issue of significant uncertainty for school districts that鈥檚 certain to factor into their decisions about whether or not to reopen for in-person learning, even on a partial basis.
鈥淚t is unchartered territory. Nobody knows what the full amount of risk is,鈥� noted Chris Thomas, the general counsel for the Arizona School Boards Association.
Despite the uncertainties, there are some key insights emerging about school districts鈥� liability in the pandemic and how to protect themselves. Here are seven things to know:
1. The main challenge: The 鈥渟tandard of care鈥� continues to shift.
The basic issue about COVID-19 liability turns on whether districts have met their duty to provide a 鈥渟tandard of care鈥濃�攖he steps districts are reasonably expected to take to ensure the health and safety of students and others who enter school grounds.
Failure to meet that standard means a district could be sued for being negligent or even reckless. The problem, said Thomas of the Arizona School Boards Association, is that what constitutes the standard of care regarding COVID-19 keeps shifting as research and public health recommendations evolve.
鈥淲e鈥檝e learned so much over the course of the last five months of how the virus is transmitted and what鈥檚 effective in terms of avoiding transmission, and the guidance has changed over time,鈥� he said. 鈥淲hat may seem today like due diligence to make sure it鈥檚 as safe as it can be, by the time it gets to a jury, the standard may be different.鈥�
2. Civil claims related to COVID-19 will probably be hard to prove.
But they could still be expensive.
Legal experts say that actually proving that a student contracted COVID-19 at school due to a school鈥檚 negligence or failure to ensure proper health protocols will probably pose significant challenges given COVID-19鈥檚 community spread.
鈥淚n the realm of suing a district because your child contracts coronavirus, it鈥檚 going to be difficult to prove those claims,鈥� said Morgan M. Masters, an associate at Albeit Weiker LLP, a Columbus, Ohio-based law firm that offers comprehensive legal services to students and educators. 鈥淏ecause you鈥檙e going to have to show causation and proving where your child contracted it may not be easy.鈥�
But that鈥檚 not where most costs are likely to come from. Districts will have to pay the legal fees associated with defending lawsuits鈥攅ven those unlikely to succeed鈥攊f their general liability insurance refuses to cover pandemic-related claims.
3. States already offer some immunity defenses for districts. But it鈥檚 not clear how they apply to COVID-19 claims.
By the mid-20th century, most, if not all, states had passed laws defining when an individual can sue a government entity and when the government can claim immunity from those lawsuits. Some of those laws could cover COVID-19-related civil claims.
The Oklahoma State School Boards Association, for example, points to an exemption in its state laws that prevents liability claims against public employees due to 鈥渁cts or omissions done in conformance with then current recognized standards.鈥� Those standards could be interpreted to include local and national health guidelines, said Julie Miller, the general counsel for the association.
鈥淎s long as our schools and other entities are following CDC guidelines and best practices, they should still be protected,鈥� she said.
A minority of states have laws that appear to offer significant protection to districts. That鈥檚 the case in Illinois, which offers immunity from most cases of ordinary negligence unless a district employee engaged in 鈥渨illful and wanton misconduct.鈥�
The line dividing ordinary negligence from recklessness in a pandemic, though, is not always clear, and has not yet been tested extensively in civil courts.
In addition, some states鈥� immunity laws aren鈥檛 as specific as others. Arizona鈥檚 statutes, for example, offer fewer exemptions for local governments than the laws in Oklahoma and Illinois.
In the spring, Arizona lawmakers considered a bill that would have restricted COVID-19 civil claims only to instances of 鈥済ross negligence鈥� and raised the burden of proof to 鈥渃lear and convincing evidence鈥� from the less-stringent standard of a 鈥減reponderance of the evidence,鈥� but it was not signed into law.
4. Some new liability policies are emerging but are untested.
Insurers are starting to respond to some of the liability concerns, and some of them are offering additional policies or riders to extend liability coverage for coronavirus-related claims.
In early August, for example, the Arizona School Risk Retention Trust鈥攁 self-insured pool governed by the nearly 250 Arizona school districts that participate鈥攁nnounced that it would .
The policy does set limits on the coverage, however, of $10,000 per claimant, $1 million per occurrence, and $2 million annual aggregate per district. There鈥檚 also a $25 million total cap for all members in the pool who elect the coverage.
In addition to a new premium and deductible, districts that add the Trust鈥檚 coverage must implement a school reopening plan that aligns with the guidelines issued by the state education department or (for community college districts) CDC guidelines. For on-site students, they must also ask parents to sign either acknowledgement and disclosure forms, or a liability waiver. (See no. 5.)
5. Liability waivers may not be enforceable.
Most parents are familiar with the kind of liability waivers that they must sign for their child to participate in field trips, extracurriculars that take place off campus, and school sports. Those activities are offered in exchange for a promise not to sue the district.
Now, some districts are asking parents to sign similar waivers as a condition of attending in-person classes. But it remains an open question whether these contracts are legally enforceable. Unlike sports, chemistry labs, or field trips, K-12 attendance is compulsory, noted Masters, the lawyer who represents plaintiffs who sue school districts. 鈥淚 think there鈥檚 a good legal argument that it鈥檚 against public policy to compel students to go to school and compel them to waive liability in order to comply with the law,鈥� she said.
Where things get murkier is if a district relegates children whose families refuse to sign such a waiver to remote learning. Not all families have the technology or broadband access to be able to meaningfully participate in remote learning, raising questions about whether they truly are offered a choice about whether to sign a waiver.
6. Additional state and federal liability protections may not be forthcoming.
While national education groups universally agree that schools should receive additional funding to respond to the pandemic, they have split over whether school districts should receive additional liability protection.
The National School Boards Association; AASA, The School Superintendents Association; the Association of Educational Service Associations; and the Association of School Business Officials International are lobbying federal lawmakers to include 鈥渢argeted liability coverage鈥� in a second COVID-19 stimulus bill.
鈥淲ithout a narrow targeted safe harbor for schools that follow applicable guidelines, the fear and very real threat of boundless liability is likely to impede our country鈥檚 social and economic recovery,鈥� the groups wrote in a July letter.
But the two national teachers鈥� unions and other labor organizations worry that increased liability protections for districts would, in effect, reduce the pressure on districts to be vigilant about health protocols, and would give muscle to politicians who have pushed to keep schools open in some states despite surging infections.
Without universal occupational safety standards for schools, the unions wrote in an Aug. 6, letter, 鈥渓iability shields could encourage some state and local governments to cut corners and reopen offices without implementing the proper protocols, undermining worker safety.鈥�
In more than half the states, lawmakers have introduced proposals or signed executive orders to extend liability protection. Some of those new rules appear to cover only businesses or health providers, however. New laws in Tennessee and Ohio do specifically mention schools. Ohio, for instance, bars COVID-19 tort claims unless a district or other entity has acted 鈥渞ecklessly, intentionally, or with wanton misconduct.鈥�
7. The best defense is a good offense.
In the end, the legal experts say, there is no surefire way to avoid a liability claim due to COVID-19, but there are some general steps districts can take now to minimize the chances of a successful claim.
Most of them are based on common sense and careful documentation that they are following all applicable health guidelines and have established clear procedures for responding to an outbreak.
For one, they should be in regular contact with their local health agencies to adjust their standard of care in line with what those groups recommend, and in response to the most up-to-date information on transmission rates in their community.
鈥淲e鈥檝e told them to work very, very closely with their county health department, build an amazing relationship with those folks, and get the best information to make sure that when or if you need to do contact tracing, or you need to close suddenly, everything is done in a protective and safe manner,鈥� Miller of the Oklahoma State School Boards Association said.
In the Tolleson Union High School District west of Phoenix, Chief Financial Officer Jeremy Calles has developed an interactive spreadsheet that shows down to the school level how much personal protective equipment, hand sanitizer, social-distancing signage, and other supplies are available.
And just as many public agencies make public their protocols, districts should create similar ones relating to the procedures for contact tracing and quarantining they will take if any student or employee is diagnosed with or shows symptoms of the virus.
鈥淪eparately, they need to know the CDC guidelines inside and out, and create written policies that are designed not only to put their students and staff on notice, but anyone who wants to file public records requests on notice about what their policies are,鈥� Masters said.
