Legislature passes COVID-19 liability protection for schools

Hannah Higgins, a high-achieving student, is behind in her schoolwork because of distance learning hurdles, but she isn’t sure about going back to school.

“I struggle with online, but I do think the health of my family and myself and the people around me are more important,” said the Summit High School junior. “Health goes above us being in person.”

Higgins wishes she could go back to school. She said she would wear a mask and even gloves to return to her Bend-La Pine School District classrooms, but she wants to be assured that it’s safe first.

COVID-19 liability protection passed Monday will encourage schools to open up safely, say the bill’s proponents. House Bill 4402 incentivizes schools to closely follow state safety protocols by tying them to protection against budget-crippling lawsuits, supporters said.

“This needed to happen so we can get all of our Oregon students back in classrooms,” said OSBA Board President Kevin Cassidy (Baker SD). “The bill struck a balance between individual rights and the collective good. It’s a vital step in reopening schools without facing financial uncertainty over liability.”

The Oregon Legislature held its third special session of 2020 on Monday. It passed bills to allow the sale of mixed drinks off premises, to provide $200 million for landlord and renter relief, to set aside $600 million for the Legislature’s Emergency Board, and to give liability protection for schools.

School leaders across the country learned in the summer that they could no longer buy insurance for lawsuits stemming from the coronavirus. With the pandemic raging, schools have been vulnerable to potentially ruinous litigation if someone became sick and connected the illness to a school.

Congress has been unable to agree on a national standard for liability protection, but more than a dozen states have created their own laws. 

Oregon’s House Bill 4402 passed Monday says public and private schools cannot be held liable as long as they are following the state’s and Oregon Health Authority’s guidelines. Schools could still be sued for reckless or intentional misconduct.

The law applies to COVID claims brought during the coronavirus state of emergency. Gov. Kate Brown has extended the state of emergency several times, currently until March 3.

During a morning work session, an amendment extended the liability protection to private K-12 schools. A bill to give health care providers liability protection as well failed in committee.  

Rep. Janeen Sollman, who introduced the bill, hopes the protection for schools passed Monday will provide a carrot for schools to reinstitute in-person learning. The bill will provide protection against nuisance lawsuits seeking quick settlements, she said. 

Sollman, D-Hillsboro, had been working with more than a dozen organizations, including OSBA, to craft a bill for the 2021 Legislature to give schools some protection. Sollman, whose work was instrumental in creating the bill for the special session, said her time as a school board member helped her see the urgency.

“It’s the lens of experience,” she said. “I’ve been in the halls. I understand.”

The Oregon Trial Lawyers Association was one of the leading opponents, worried that the bill would limit the rights of people to sue for wrongdoing.

Among the bills’ compromises, it enhances whistleblower protections so people working with schools can speak up if a school fails to follow the rules.

The threat of lawsuits has been a difficult element in schools’ planning for in-person instruction. Some school leaders say they haven’t let the risk stop them, but they have had to weigh potential damage to the district in their calculations.

Scott Sullivan, the Estacada School District director of curriculum, instruction and assessment, said before the special session that he would sleep a lot better if liability protection passed.

Like many Oregon districts, Estacada has offered some limited in-person contact this school year even without liability protection and is looking for ways to offer more in-person instruction. 

The fact that liability protection was part of a limited one-day session, though, indicated how important the legal assurance is for schools, Sollman said.

“This is not the step that opens all our doors, but it’s a tool,” Sollman said. “It’s a step in the right direction, and it’s a safety net for our schools.”

- Jake Arnold, OSBA
jarnold@osba.org