In-person instruction could nullify liability shield for some school districts
Wednesday, January 6, 2021
If school districts don’t follow Oregon’s “advisory” coronavirus metrics, they could lose liability protection, OSBA advised school leaders Wednesday.
An outside legal opinion commissioned by OSBA said the liability protection would likely not apply if schools open contrary to the metrics. The law does not distinguish between advisory and mandatory.
OSBA recommends that schools follow all the state’s guidances to maintain the maximum protection under House Bill 4402, said Haley Percell, OSBA’s chief legal counsel.
Education advocates successfully persuaded the Legislature to pass COVID-19 liability protection in December. HB 4402 shields public and private schools from lawsuits stemming from COVID-19 infections as long as the schools follow all the state’s “COVID-19 emergency rules.” It does not cover reckless or intentional misconduct.
The Oregon Department of Education’s “Ready Schools, Safe Learners” guidance includes four thresholds of county-level disease transmission to dictate when schools can offer in-person learning. Most schools are in counties that currently fall into distance learning only.
As of Jan. 1, the metrics became advisory, putting the decision on opening classrooms with local school and health officials. Many school districts have begun planning to bring students back, even in counties with high coronavirus rates.
“Move cautiously,” wrote OSBA Executive Director Jim Green in an email to members.
OSBA is preparing an FAQ related to HB 4402, in-person instruction, vaccine information and liability protection to be posted on the Property and Casualty Coverage for Education website. PACE is Oregon’s leading insurance pool for education.
ODE is working with the Oregon Health Authority to update the “Ready Schools, Safe Learners” guidance by around Jan. 19.
