Schools can’t open without a shield from likely lawsuits, education leaders say

Schools cannot reopen to students without COVID-19 liability protection, say school leaders, business officials and education advocates.

An Oregon legislative task force is studying the issue, and an Aug. 10 special session could take it up. Schools need certainty as soon as possible while they plan their fall schedules.

Congress has also been discussing liability protection, which could offer a national standard and protect businesses operating across state lines. In the absence of federal action, though, at least a dozen states have passed COVID-19 liability protection, according to the National Law Review.

OSBA has encouraged education advocates to contact Oregon legislators and press for COVID-19 liability protection. Some frequently asked questions can help sort out the issue.

What is COVID-19 liability protection?

That is the multimillion-dollar question, and a legislative task force is taking a lot of input to find an answer. Broadly, liability protection would prevent a person from suing a school or business if someone gets sick or dies from COVID-19. Any legislation would define who would be protected, under what conditions and for how much money. School districts are seeking legislation that would give school districts protection from lawsuits except in situations where a school is intentionally in violation of the law.

Who can sue?

Pretty much everyone but employees, whose claims would typically fall into the workers’ compensation system. Any student who became sick, any visitor to a school or anyone who came in contact with someone who had been in a school could sue.

Why do school districts need COVID-19 liability protection?

A global pandemic means it is inevitable that people with a connection to a school will get sick or otherwise be harmed. The defense costs for a single case, which run into tens of thousands of dollars, could damage a larger school district’s budget and cripple a small district. If a person wins a large judgment, it would be ruinous for any district.

The world’s insurance companies want no part of this risk and have excluded communicable diseases from their policies. COVID-19 has joined the ranks of “uninsurable exposures,” such as pollution, asbestos, lead, fungi and terrorism.

What about PACE?

Property and Casualty Coverage for Education, Oregon’s leading insurance pool for education entities, relies on the reinsurance market, and nobody is offering communicable disease protection. Insurance pools around the country are excluding coverage for communicable disease for this reason. An insurance pool must set premiums based on actuarial projections, and there is no way to even calculate the financial risk COVID-19 poses.

What would be the grounds for suing a school?

The Oregon Department of Education’s “Ready Schools, Safe Learners” guidance is 75 pages long, far longer than guidance given to businesses. With a mixture of rules and recommendations that are being updated regularly, the guidance offers ample targets for lawsuits. School leaders, despite their best efforts, would have a hard time proving there wasn’t a lapse in areas such as cleaning, screening or physical distancing.

So what’s the holdup for legislation?

The Oregon Trial Lawyers Association is one of the leading opponents, saying that immunity shifts the burden of harm to people who are least able to protect themselves. Legislators are trying to find a balance between letting people sue for legitimate harm caused by businesses or public entities and preventing unreasonable lawsuits from wiping out every public and commercial space. There is also the matter of sorting out business concerns from school concerns. Schools have far more guidelines and requirements that could be used for lawsuits than businesses face.

Will liability protection completely protect schools from COVID-19 lawsuits?

No, people can and will sue for whatever reason they want. But liability protections would make it harder to sue and lower the chances of a big payout, making suing less appealing.

What can education advocates do?

Contact your legislator and urge action on COVID-19 liability protection. OSBA has provided information and tools to advocate for your schools. 

- Jake Arnold, OSBA
jarnold@osba.org